Beruflich Dokumente
Kultur Dokumente
Thursday
October 4, 1996
Part III
Department of
Education
Sexual Harassment Guidance:
Harassment of Students by School
Employees; Notice
52171
52172 Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Notices
determined by application of agency likely it is that he or she will consider of authority. For instance, because
principles,9 i.e., by principles governing any adult employee to be in a position students may be encouraged to believe
the delegation of authority to or of authority). that a teacher has absolute authority
authorization of another person to act Even in situations not involving (i) over the operation of his or her
on one’s behalf. Accordingly, a school quid pro quo harassment, (ii) creation of classroom, a student may not object to
will always be liable for even one a hostile environment through an a teacher’s sexually harassing comments
instance of quid pro quo harassment by employee’s apparent authority, or (iii) during class; 22 however, this does not
a school employee in a position of creation of a hostile environment in necessarily mean that the conduct was
authority, such as a teacher or which the employee is aided in carrying welcome. Instead, the student may
administrator, whether or not it knew, out the sexual harassment by his or her believe that any objections would be
should have known, or approved of the position of authority, a school will be ineffective in stopping the harassment
harassment at issue.10 Under agency liable for sexual harassment of its or may fear that by making objections he
principles if a teacher or other employee students by its employees if the school or she will be singled out for harassing
uses the authority he or she is given has notice of the harassment (i.e., knew comments or other retaliation.
(e.g., to assign grades) to force a student or should have known of the In addition, OCR must consider
to submit to sexual demands, the harassment) but failed to take particular issues of welcomeness if the
employee ‘‘stands in the shoes’’ of the immediate and appropriate steps to alleged harassment relates to alleged
school and the school will be remedy it.16 Determining when a school ‘‘consensual’’ sexual relationships
responsible for the use of its authority has notice of sexual harassment is between adult employees of elementary
by the employee/agent.11 discussed in the Peer Harassment and secondary schools and students in
A school will also be liable for hostile Guidance.17 those schools. If elementary students are
environment sexual harassment by its Finally, schools are required by the involved, welcomeness will not be an
employees, i.e., for harassment that is Title IX regulations to adopt and issue: OCR will never view sexual
sufficiently severe, persistent, or publish grievance procedures providing conduct between an adult school
pervasive to limit a student’s ability to for prompt and equitable resolution of employee and an elementary school
participate in or benefit from the sex discrimination complaints, student as consensual. In cases
education program, or to create a hostile including complaints of sexual involving secondary students, there will
or abusive environment if the harassment, and to disseminate a policy be a strong presumption that sexual
employee—(1) Acted with apparent against sex discrimination.18 If a school conduct between an adult school
authority (i.e., because of the school’s fails to do so, it will be liable under employee and a student is not
conduct, the employee reasonably Title IX for the lack of grievance consensual. However, if that
appears to be acting on behalf of the procedures, regardless of whether presumption is challenged for older
school, whether or not the employee sexual harassment occurred. In
secondary students, and for post-
acted with authority); 12 or (2) was aided addition, if OCR determines that
secondary students, OCR will consider
in carrying out the sexual harassment of harassment occurred, the school may be
a number of factors in determining
students by his or her position of in violation of Title IX as to the
whether sexual advances or other sexual
authority with the institution.13 For harassment, under the agency principles
conduct could be considered welcome:
example, a school will be liable if a previously discussed, because a school’s
teacher abuses his or her delegated failure to implement effective policies —The nature of the conduct and the
authority over a student to create a and procedures against discrimination relationship of the school employee to the
may create apparent authority for school student, including the degree of influence
hostile environment, such as if the
(which could, at least in part, be affected
teacher explicitly or implicitly threatens employees to harass students.19 by the student’s age), authority, or control
to fail a student unless the student In all cases of alleged harassment by the employee has over the student.
responds to his or her sexual advances, employees investigated by OCR, OCR —Whether the student was legally or
even though the teacher fails to carry will determine whether a school has practically unable to consent to the sexual
out the threat.14 taken immediate and appropriate steps conduct in question with an adult school
As this example illustrates, in many reasonably calculated to end any employee. A student’s age or disability
cases the line between quid pro quo and harassment that has occurred, remedy would affect his or her ability to do so.23
hostile environment discrimination will its effects, and prevent harassment from Severe, Persistent, or Pervasive
be blurred, and the employee’s conduct occurring again. If the school has done
may constitute both types of so, OCR will consider the case against Even a single instance of quid pro quo
harassment. However, what is important that school resolved and will take no harassment is a violation of Title IX. In
is that the school is liable for that further action. This is true in cases in determining whether an employee’s
conduct under application of agency which the school was in violation of sexual harassment of a student created
principles, regardless of whether it is Title IX,20 as well as those in which a hostile environment, i.e., whether it
labeled as quid pro quo or hostile there has been no violation of Federal was sufficiently severe, persistent, or
environment harassment. law.21 pervasive to limit a student’s ability to
Whether other employees, such as a participate in or benefit from the
janitor or cafeteria worker, are in Welcomeness education program, or to create a hostile
positions of authority—or whether it In order to be actionable as or abusive educational environment,
would be reasonable for the student to harassment, sexual conduct must be OCR considers the factors discussed in
believe they are, even if not (i.e., unwelcome. Issues regarding credibility the Peer Harassment Guidance.24 An
apparent authority)—will depend on determinations and whether conduct is additional factor to consider if a student
factors such as the authority actually in fact unwelcome, notwithstanding a is harassed by a school employee is the
given to the employee 15 (e.g., in some student’s acquiescence or failure to identity and relationship of the
elementary schools, a cafeteria worker complain, are discussed in the Peer individuals involved. For example, due
may have authority to impose Harassment Guidance. Schools should to the power that a professor or teacher
discipline) and the age of the student be particularly concerned about this has over a student, sexually based
(the younger the student, the more issue when the harasser is in a position conduct by that person toward a student
52174 Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Notices
may be more likely to create a hostile intended to protect students from sex college student’s agreeing to be spanked
environment than similar conduct by discrimination, not to regulate the should she not attain a certain grade may
another student.25 content of speech. This is a particularly constitute quid pro quo harassment); see also
Karibian v. Columbia University, 14 F.3d
important consideration in classroom
Prompt and Equitable Grievance 773, 777–79 (2nd Cir. 1994) (Title VII case).
and related activities by teachers. Thus, 5. See Peer Harassment Guidance at n. 5
Procedures
in regulating the conduct of its faculty (describing conduct found to be of a sexual
Title IX’s requirement that schools to prevent or respond to sexual nature).
adopt and publish grievance procedures harassment, a school must formulate, 6. Doe v. Petaluma City School Dist., 830
providing for prompt and equitable interpret, and apply its rules so as to F. Supp. 1560, 1571–73 (N.D. Cal. 1993),
resolution of complaints of protect free speech rights.32 motion for reconsideration granted (July 22,
discrimination on the basis of sex is also 1996) (reaffirming Title IX liability for peer
applicable to complaints of harassment Footnotes harassment); Moire v. Temple University
of students by a school’s employees.26 1. The term ‘‘employee’’ refers to School of Medicine, 613 F. Supp. 1360, 1366
Thus, a school’s grievance procedures employees and agents of a school. This (E.D. Pa. 1985), aff’d mem., 800 F.2d 1136
includes persons with whom the school (3d Cir. 1986); see also Meritor Savings Bank,
must also apply to those complaints. FSB v. Vinson, 477 U.S. 57, 67 (1986) (Title
contracts to provide services for the school.
In addition, because it is possible that VII case).
See Brown v. Hot, Sexy, and Safer
an employee designated to handle Title Productions, Inc., 68 F.3d 525 (1st Cir. 1995) 7. See also Shoreline School Dist., OCR
IX complaints may him or herself (Title IX sexual harassment claim brought for Case No. 10–92–1002 (a teacher’s patting
engage in harassment, it may be school’s role in permitting contract student on arm, shoulder and back, and
necessary for the school to designate consultant hired by it to create allegedly restraining the student when he was out of
more than one employee as responsible hostile environment). In addition, while the control, not conduct of a sexual nature);
for handling these complaints in order standards contained in the Department’s Peer Dartmouth Public Schools, OCR Case No. 01–
to ensure that students have an effective Harassment Guidance are generally 90–1058 (same as to contact between high
applicable to claims of student-on-student school coach and students); San Francisco
means of reporting harassment.27 State University, OCR Case No. 09–94–2038
harassment, schools will be liable for the
As in the case of students accused of sexual harassment of one student by another (same as to faculty advisor placing her arm
harassment, a school’s employees may student under the standards contained in this around graduate student’s shoulder in posing
have certain due process rights.28 Guidance if a student engages in sexual for a picture); Analy Union High School Dist.,
Procedures that ensure the Title IX harassment as an agent or employee of a OCR Case No. 09–92–1249 (same as to drama
rights of the complainant, while at the school. instructor who put his arms around both
same time according due process rights For instance, a school would be liable male and female students who confided in
to the parties involved, will lead to under the standards applicable to quid pro him).
sound and supportable decisions. The quo harassment if a student teaching 8. See Peer Harassment Guidance at notes
rights established under Title IX must assistant, who has been given authority to 9, 41, and 42 and accompanying text.
assign grades, requires a student in his or her 9. The Supreme Court has ruled that
be interpreted consistently with any class to submit to sexual advances in order agency principles apply in determining an
applicable federally guaranteed rights to obtain a certain grade in the class. Finally, employer’s liability under Title VII for the
involved in a complaint. Schools should this Guidance does not address employee-on- harassment of its employees by supervisors.
ensure that steps to accord due process employee sexual harassment, even though See Vinson, 477 U.S. at 72. These principles
rights do not obstruct or delay the that conduct is prohibited by Title IX. If would govern in Title IX cases involving
protections provided by Title IX to the employees bring sexual harassment claims employees who are harassed by their
complainant. under Title IX, case law applicable to sexual supervisors. See 28 CFR 42.604 (regulations
harassment in the work place under Title VII providing for handling employment
Notice of Outcome and FERPA of the Civil Rights Act of 1964, and Equal discrimination complaints by Federal
As discussed in the Peer Harassment Employment Opportunity (EEOC) guidelines agencies; requiring agencies to apply Title VII
Guidance, the Title IX grievance process will apply. See 28 CFR 42.604 (Procedures law where applicable). These same principles
for Complaints of Employment should govern the liability of educational
should provide for notice of the Discrimination Filed Against Recipients of institutions under Title IX for the harassment
outcome and disposition of a complaint Federal Financial Assistance). of students by teachers and other school
if doing so is consistent with a school’s 2. 20 U.S.C. § 1681, et seq., as amended; 34 employees in positions of authority. See
obligations under the Family CFR 106.31(b). Franklin v. Gwinnett County Public Schools,
Educational Rights and Privacy Act 3. For over a decade, the Department has 503 U.S. 60, 75 (1992).
(FERPA) and its regulations.29 FERPA applied Title IX to prohibit sexual 10. The Supreme Court in Vinson did not
generally prohibits a school from harassment. As in the Peer Harassment alter the standard developed in the lower
releasing personally identifiable Guidance, the Department also applies many Federal courts whereby an institution is
information from a student’s education of the principles developed in the case law absolutely liable for quid pro quo sexual
governing sexual harassment in the harassment whether or not it knew, should
record without the consent of the workplace, under Title VII, as appropriate to have known, or approved of the harassment
student (or his or her parents, if the the educational context. Similarly, many of at issue. 477 U.S. at 70–71; see also Lipsett
student is a minor).30 Thus, if the the principles applicable to racial harassment v. University of Puerto Rico, 864 F.2d 881,
alleged harasser is a teacher, under Title VI of the Civil Rights Act of 1964 901 (1st Cir. 1988); EEOC Notice N–915–050,
administrator, or other non-student also apply to sexual harassment under Title March 1990, Policy Guidance on Current
employee, FERPA would not limit the IX. See Department’s Notice of Investigative Issues of Sexual Harassment, at p. 21. This
school’s ability to inform the Guidance for Racial Harassment, 59 FR 11448 standard applies in the school context as
complainant of any disciplinary action (1994). well. Kadiki, 892 F. Supp. at 752 (for
taken. 4. Alexander v. Yale University, 459 F. purposes of quid pro quo harassment of a
Supp 1, 4 (D.Conn 1977), aff’d, 631 F.2d 178 student, professor is in similar position as
First Amendment (2nd Cir. 1980) (a claim that academic work place supervisor).
advancement was conditioned upon 11. Kadiki, 892 F. Supp. at 754–755; cf.
Just as with peer harassment, in cases submission to sexual demands constitutes a Martin v. Cavalier Hotel Corp., 48 F.3d 1343,
of alleged harassment by employees, the claim of sex discrimination in education); 1351 n. 3 (4th Cir. 1995) (Title VII case);
protections of the First Amendment Kadiki v. Virginia Commonwealth University, Karibian, 14 F.3d at 777–78; Henson v. City
must be considered if issues of speech 892 F. Supp 746, 752 (E.D. Va. 1995) of Dundee, 682 F.2d 897, 910 (11th Cir. 1982)
or expression are involved.31 Title IX is (reexamination in a course conditioned on (Title VII case).
Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Notices 52175
12. Restatement (Second) Agency 24. These factors include the type, also George Mason University, OCR Case No.
§ 219(2)(d); Martin v. Cavalier Hotel Corp., 48 frequency, and duration of the conduct; the 03–94–2086 (law professor’s use of a racially
F.3d at 1352 (finding an employer liable number of individuals involved; the age and derogatory word, as part of an instructional
under Title VII for its General Manager’s sex of the individuals involved; the size of hypothetical regarding verbal torts, did not
sexual harassment of an employee where the the school, the location of the incidents, and constitute racial harassment); Portland
Manager used his apparent authority to the context in which they occurred; any other School Dist. 1J, OCR Case No. 10–94–1117
commit the harassment; the Manager was incidents at the school; and any incidents of (reading teacher’s choice to substitute a less
delegated the full authority to hire, fire, gender-based, but non-sexual harassment. offensive term for a racial slur when reading
promote, and discipline employees and used Note that, as with peer harassment, a single an historical novel aloud in class constituted
the authority to accomplish the harassment; instance of severe harassment may be an academic decision on presentation of
and company policy required employees to sufficient to create a hostile environment. curriculum, not racial harassment).
report harassment to the Manager with no Peer Harassment Guidance at p. 5 and n.35;
other grievance process made available to Racial Harassment Investigative Guidance at Appendix Two—Sexual Harassment
them). 11449; Brock v. United States, 64 F. 3d 1421, Guidance: Peer Harassment
13. See Restatement (Second) of Agency 1423 (9th Cir. 1995) (Title VII case); Simon This guidance discusses the analysis
§ 219(2)(d); EEOC Policy Guidance on v. Morehouse Sch. of Medicine, 908 F. Supp. that the Office for Civil Rights (OCR)
Current Issues of Sexual Harassment at p. 28; 959, 969–970 (N.D. Ga. 1995) (Title VII case);
follows, and that recipients of Federal
Karibian, 14 F.3d at 780; Hirschfeld v. New Al-Dabbagh v. Greenpeace, Inc., 873 F. Supp.
Mexico Corrections Dept., 916 F.2d 572, 579 1105, 1111–12 (N.D. Ill. 1994) (Title VII case); funding should use, when investigating
(10th Cir. 1990) (Title VII case); Martin v. Watts v. N.Y.C. Police Dept., 724 F. Supp. 99 allegations that sexual harassment of a
Cavalier Hotel Corp., 48 F.3d at 1352. (S.D.N.Y. 1989) (Title VII case). student or students by another student
14. Karibian, 14 F.3d at 780 (employer 25. Patricia H., 830 F. Supp. at 1297 or group of students (peer harassment)
would be liable for hostile environment (‘‘grave disparity in age and power’’ between has created a hostile environment at an
harassment where allegations were that a teacher and student contributed to the educational institutions that receive
supervisor coerced employee into a sexual creation of a hostile environment); Federal financial assistance.1 This
relationship by, among other things, telling Summerfield Schools, OCR Case No. 15–92– guidance is based on existing legal
her she ‘‘’owed him’ for all he was doing for 1929 (‘‘impact of the * * * remarks was
principles, which are detailed in the
her as her supervisor’’); Sparks v. Pilot heightened by the fact that the coach is an
Freight Carriers, Inc., 830 F.2d 1554, 1558– adult in a position of authority’’); cf. Doe v. endnotes accompanying the document.
60) (11th Cir. 1987) (Title VII case holding Taylor I.S.D., 15 F.3d 443 (5th Cir. 1994), Introduction
employer liable for sexually hostile cert. denied,—U.S.—, 115 S.Ct. 70 (1994)
environment created by supervisor who (Sec. 1983 case; in finding that a sexual Under Title IX of the Education
repeatedly reminded the harassed employee relationship between a high school teacher Amendments of 1972 (Title IX) and its
that he could fire her if she did not comply and a student was unlawful, court considered implementing regulations, no individual
with his sexual advances). the influence that the teacher had over the may be discriminated against on the
15. Cf. Karibian, 14 F.3d at 780. student by virtue of his position of authority). basis of sex in education programs
16. Id. 26. At the elementary and secondary level, receiving Federal financial assistance.2
17. See Peer Harassment Guidance at pp. this responsibility generally lies with the Peer sexual harassment is a form of
6–7. school district. At the post-secondary level,
18. 34 CFR 106.8(b). there may be a procedure for a particular
prohibited sex discrimination where the
19. EEOC Policy Guidance at p. 25 (‘‘* * * campus or college or for an entire university harassing conduct creates a hostile
in the absence of a strong, widely system. Moreover, while a school is required environment.3 Thus, unwelcome sexual
disseminated, and consistently enforced to have a grievance procedure under which advances, requests for sexual favors,
employer policy against sexual harassment, complaints of sex discrimination (including and other verbal or physical conduct of
and an effective complaint procedure, sexual harassment) can be filed, the same a sexual nature 4 constitutes sexual
employees could reasonably believe that a procedure may also be used to address other harassment when the conduct is
harassing supervisor’s actions will be forms of discrimination. sufficiently severe, persistent, or
ignored, tolerated, or even condoned by 27. See Meritor, 477 U.S. at 72–73. pervasive to limit a student’s ability to
upper management.’’). 28. These rights may be derived from the
20. If OCR finds a violation of Title IX, it United States Constitution, State law,
participate in or benefit from the
will seek to obtain an agreement with the collective bargaining agreements, or education program, or to create a hostile
school to voluntarily correct the violation. institutional regulations and policies, such as or abusive educational environment.5
The agreement will set out the specific steps faculty handbooks. OCR finds a school to be in violation
the school will take and provide for 29. See 20 U.S.C. § 1232g; 34 CFR Part 99. of Title IX for peer hostile environment
monitoring by OCR to ensure that the school 30. Id. sexual harassment where a school
complies with the agreement. 31. The First Amendment applies to knows of but fails to remedy the
21. However, schools should note that the entities and individuals that are State actors. harassment in its education programs or
Supreme Court has held that, should a The receipt of Federal funds by private activities.6 Title IX does not make a
student file a private lawsuit under Title IX, schools does not directly subject those school responsible for the actions of the
monetary damages are available as a remedy schools to the U.S. Constitution. See Rendell-
if there has been a violation of Title IX. Baker v. Kohn, 457 U.S. 830, 840 (1982).
harassing students, but rather for its
Franklin, 503 U.S. at 76. Of course, a school’s However, all actions taken by OCR must own discrimination in permitting the
immediate and appropriate remedial actions comport with First Amendment principles, harassment to continue once the school
are relevant in determining the extent and even in cases involving private schools that has notice of it. A school will have
nature of the damages suffered by a plaintiff. are not directly subject to the First notice of a hostile environment when it
22. See Leija v. Cantutillo Independent Amendment. knew or should have known of the
School Dist., 887 F. Supp. 947, 954 (N.D. Tex. 32. For an example of the application of harassment.7 Moreover, schools are
1993) (‘‘young children, taught to respect First Amendment principles to alleged sexual required by the Title IX regulations to
their teachers and follow their teacher’s harassment by a school employee, see Silva have grievance procedures through
request, often do not know what to do when v. University of New Hampshire, 883 F.
abuse occurs’’). Supp. 293 (D.N.H. 1994) (finding that a
which students can complain of alleged
23. Of course, nothing in Title IX would university professor was wrongly disciplined sex discrimination by other students,
prohibit a school from implementing policies when he was fired for using classroom including sexual harassment.8
prohibiting sexual conduct or sexual examples that seemed sexual in nature to It is important to recognize that Title
relationships between students and adult some students, based on an impermissibly IX’s prohibition of sexual harassment
employees. subjective sexual harassment policy). See does not extend to nonsexual touching
52176 Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Notices
or other nonsexual conduct.9 For third parties, who are not themselves following types of information may be
example, one student’s demonstration of students at the school (e.g., members of helpful in resolving the dispute:
a sports maneuver requiring contact a visiting athletic club), where the —Statements by any witnesses to the alleged
with another student will not be conduct creates a sexually hostile incident.
considered sexual harassment.10 environment in the school’s programs or —Evidence about the relative credibility of
Finally, where the alleged harassment activities, if the school has notice of the the allegedly harassed student and the
involves issues of speech or expression, harassment but fails to take appropriate alleged harasser. For example, the level of
a school’s obligations may be affected by steps to remedy it.17 In determining detail and consistency of each person’s
application of First Amendment account should be compared in an attempt
whether the school took appropriate to determine who is telling the truth.
principles. measures to remedy the sexual Another way to assess credibility is to see
These issues are discussed in more harassment in these cases, OCR will if corroborative evidence is lacking where
detail below. consider the level of control that the it should logically exist. However, the
Applicability of Title IX school has over the alleged harasser.18 absence of witnesses may indicate only the
unwillingness of others to step forward,
Title IX applies to all public and Welcomeness perhaps due to fear of the harasser or a
private educational institutions that In order to be actionable as desire not to get involved.
receive Federal funds, including —Evidence that the alleged harasser had
harassment, sexual conduct must be been found to have harassed others may
elementary and secondary schools, unwelcome. Conduct is unwelcome
school districts, proprietary schools, support the credibility of the student
when the student being harassed did not claiming harassment; conversely, the
colleges and universities. This guidance ‘‘solicit or incite it’’ and ‘‘regarded the student’s claim will be weakened if he or
uses the term ‘‘schools’’ to refer to all conduct as undesirable or offensive.’’ 19 she had been found to have made false
such institutions. The ‘‘education Mere acquiescence in the conduct or the allegations against other individuals.
program’’ of a school includes all of the failure to complain does not always —Evidence of the allegedly harassed
school’s operations.11 This means that mean that the conduct was welcome.20 student’s reaction or behavior immediately
Title IX protects students in connection For example, a student may decide not
after the alleged harassment. For example,
with all of the academic, educational, were there witnesses who saw the student
to resist sexual advances of another immediately after the alleged incident who
extra-curricular, athletic, and other student or may not file a complaint out
programs of the school, whether they say that the student appeared to be upset?
of fear. In addition, a student may not —Evidence about whether the student
take place in the facilities of the school, object to a pattern of sexually claiming harassment filed a complaint or
on a school bus, at a class or training demeaning comments directed at him or took other action to protest the conduct
program sponsored by the school at her by a group of students out of a soon after the alleged incident occurred.
another location, or elsewhere. concern that objections might cause the However, failure to immediately complain
Title IX protects any ‘‘person’’ from may merely reflect a fear of retaliation or
harassers to make more comments. The a fear that the complainant may not be
sex discrimination; accordingly both
fact that a student may have accepted believed rather than that the alleged
male and female students are protected
the conduct does not mean that he or harassment did not occur.
from sexual harassment by their peers.12
she welcomed it.21 Also, the fact that a —Other contemporaneous evidence. For
Moreover, Title IX prohibits sexual
student willingly participated in example, did the student claiming
harassment regardless of the sex of the harassment write about the conduct, and
conduct on one occasion does not
harasser, e.g., even where the harasser his or her reaction to it, soon after it
prevent him or her from indicating that
and the person being harassed are occurred (e.g., in a diary or letter)? Did the
the same conduct has become
members of the same sex.13 One student tell others (friends, parents) about
unwelcome on a subsequent occasion. the conduct (and his or her reaction to it)
example would be a campaign of
On the other hand, where a student soon after it occurred?
sexually explicit graffiti directed at a
actively participates in sexual banter
particular girl by other girls.14 Title IX Severe, Persistent, or Pervasive
and discussions and gives no indication
does not, however, apply to
that he or she doesn’t like it, then the Peer sexual harassment is created
discrimination on the basis of sexual
evidence generally will not support a when conduct of a sexual nature is
orientation,15 although such conduct
conclusion that the conduct was sufficiently severe, persistent, or
may be prohibited by State or local
unwelcome.22 pervasive to limit a student’s ability to
laws.
When younger children are involved, participate in or benefit from the
Liability of a School for Peer Sexual it may be necessary to determine the education program, or to create a hostile
Harassment degree to which they are able to or abusive educational environment. In
A school will be liable for the conduct recognize that certain sexual conduct is deciding whether conduct is sufficiently
of its students that creates a sexually conduct to which they can or should severe, persistent or pervasive, the
hostile environment where (i) a hostile reasonably object and the degree to conduct should be considered from both
environment exists, (ii) the school which they can articulate an objection. a subjective 23 and objective 24
knows (‘‘has notice’’) of the harassment, Accordingly, OCR will consider the age perspective. In making this
and (iii) the school fails to take of the student, the nature of the conduct determination, all relevant
immediate and appropriate steps to involved, and other relevant factors in circumstances should be considered: 25
remedy it. Under such circumstances, a determining whether a student had the The degree to which the conduct
school’s failure to respond to the capacity of welcoming sexual conduct. affected one or more students’
existence of a hostile environment If there is a dispute about whether the education. For a hostile environment to
within its own programs or activities harassment occurred or whether it was exist, the conduct must have limited the
permits an atmosphere of sexual welcome—in a case where it is ability of a student to participate in or
discrimination to permeate the appropriate to consider whether the benefit from his or her education, or
educational program and results in conduct could be welcome— altered the conditions of the student’s
discrimination prohibited by Title IX.16 determinations should be made based educational environment.26
For the same reason, a school will be on the totality of the circumstances. —Many hostile environment cases involve
liable for sexual harassing conduct of While this is not an exhaustive list, the tangible or obvious injuries.27 For example
Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Notices 52177
a student’s grades may go down or the The number of individuals involved. Notice and Grievance Procedures
student may be forced to withdraw from For example, sexual harassment may be
school.28 A student may also suffer A school will be in violation of Title
committed by an individual or a group. IX for peer sexual harassment occurring
physical injuries and mental or emotional In some cases, verbal comments or other
distress.29 in its programs or activities if the school
conduct from one person might not be ‘‘has notice’’ of a sexually hostile
—However, a hostile environment may exist
even where there is no tangible injury to sufficient to create a hostile environment and fails to take immediate
the student.30 For example, a student may environment, but could be if done by a and appropriate corrective action. A
have been able to keep up his or her grades group. Similarly, while harassment can school will have notice when it actually
and continue to attend school even though be directed towards an individual or a ‘‘knew, or in the exercise of reasonable
it was more difficult for him or her to do group,37 the effect of the conduct care, should have known’’ about the
so.31 A student may be able to remain on towards a group may vary, depending harassment. In addition, so long as an
a sports team, despite feeling humiliated or on the type of conduct and the context.
angered by harassment that creates a agent or responsible employee of the
For certain types of conduct, there may recipient received notice, that notice
hostile environment.32 Harassing conduct be ‘‘safety in numbers.’’ For example,
in these examples alters the student’s will be imputed to the recipient.
following an individual student and A recipient can receive notice in
educational environment on the basis of
sex. making sexual taunts to him or her may many different ways. Because schools
—A hostile environment can occur even be very intimidating to that student but, are required to have Title IX grievance
where the harassment is not targeted in certain circumstances, less so to a procedures, a student may have filed a
specifically at the individual group of students. On the other hand, grievance or complained to a teacher
complainant.33 For example, where a persistent unwelcome sexual conduct about fellow students sexually harassing
student or group of students regularly still may create a hostile environment him or her. A student, parent, or other
directs sexual comments towards a when directed towards a group. individual may have contacted other
particular student, a hostile environment The age and sex of the alleged
may be created not only for the targeted appropriate personnel, such as a
harasser and the subject(s) of the principal, campus security, bus driver,
student, but for others who witness the
conduct.
harassment. For example, in the case of teacher, an affirmative action officer, or
younger students, sexually harassing staff in the office of student affairs. An
The type, frequency and duration of conduct may be more intimidating agent or responsible employee of the
the conduct. In most cases, a hostile when coming from an older student.38 institution may have witnessed the
environment will exist where there is a The size of the school, location of the harassment. The recipient may receive
pattern or practice of harassment, or incidents, and context in which they notice in an indirect manner, from
where the harassment is sustained and occurred. Depending on the sources such as a member of the school
nontrivial.34 For instance, where a circumstances of a particular case, fewer staff, a member of the educational or
young woman is taunted by one or more incidents may have a greater effect at a local community, or the media. The
young men about her breasts and/or small college than at a large university recipient also may have received notice
genital area, OCR may find that a hostile campus. Harassing conduct occurring from flyers about the incident(s) posted
environment has been created, on a school bus may be more around the school.43
particularly where the conduct has gone intimidating than similar conduct on a Constructive notice exists when the
on for some time, takes place school playground because the school ‘‘should have’’ known about the
throughout the school, or where the restricted area makes it impossible for harassment—when the school would
taunts are made by a number of the students to avoid their harassers.39 have found out about the harassment
students. The more severe the conduct, Harassing conduct in a personal or through a ‘‘reasonably diligent
the less the need to show a repetitive secluded area such as a dormitory room inquiry.’’ 44 For example, where a school
series of incidents; this is particularly or residence hall can also have a greater knows of some incidents of harassment,
true when the harassment is physical. effect (e.g., be seen as more threatening) there may be situations where it will be
For instance, where the conduct is more than would similar conduct in a more charged with notice of others—where
severe, e.g., attempts to grab a female public area. On the other hand, the known incidents should have
student’s breasts, genital area, or harassing conduct in a public place may triggered an investigation that would
buttocks, it need not be as persistent or be more humiliating. Each incident have led to a discovery of the additional
pervasive in order to create a hostile must be judged individually. incidents. In other cases, the
environment. Indeed, a single or Other incidents at the school. A series pervasiveness of the harassment may be
isolated incident of sexual harassment of instances at the school, not involving enough to conclude that the school
may, if sufficiently severe, create a the same students, could—taken should have known of the hostile
hostile environment.35 On the other together—create a hostile environment, environment—where the harassment is
hand, conduct that is not severe, even if each by itself would not be widespread, openly practiced, or well-
persistent or pervasive will not create a sufficient.40 known to students and staff (such as
hostile environment; e.g., a comment by Incidents of gender-based, but non- sexual harassment occurring in
one student to another student that she sexual harassment. Acts of verbal or hallways, graffiti in public areas, or
has a nice figure. Indeed, depending on physical aggression, intimidation, or harassment occurring during recess
the circumstances this may not even be hostility based on sex, but not involving under a teacher’s supervision).45
conduct of a sexual nature.36 Similarly, sexual activity or language, is a form of Schools are required by the Title IX
because students date one another, a discrimination and is unlawful if it is regulations to adopt and publish
request for a date or a gift of flowers, ‘‘sufficiently patterned or pervasive’’ grievance procedures providing for
even if unwelcome, would not create a and directed at individuals because of prompt and equitable resolution of sex
hostile environment, However, where it their sex.41 Such incidents, combined discrimination complaints, including
is clear that the conduct is unwelcome, with incidents of sexual harassment, complaints of sexual harassment, and to
repeated requests for dates or attempts could create a hostile environment, even disseminate a policy against sex
to make contact could create a hostile if each by itself would not be discrimination.46 These procedures
environment. sufficient.42 provide a school with a mechanism for
52178 Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Notices
discovering sexual harassment as early individuals can be identified who were may need to provide training for the
as possible and for effectively correcting subjected to the harassment, and their larger educational community to
problems, as required by Title IX. By age; whether those individuals want to prevent any future incidents and ensure
having accessible, effective, and fairly pursue the matter; whether there have that students, parents, and teachers can
applied grievance procedures (see been other complaints or reports of recognize any that do occur and know
discussion below), a school is telling its harassment by the alleged harasser; the how to respond.56 A school must always
students that it does not tolerate sexual specificity of the information; and the ensure that there is no retaliation
harassment and that students can report objectivity and credibility of the source against a student for raising a sexual
it without fear of adverse consequences. of the report. It may be appropriate for harassment complaint.
Accordingly, where a school has a school to take interim measures. For Where a student reporting harassment
failed to provide this mechanism for instance, where a student alleges that asks that his or her name not be
notice of and resolving complaints, it she has been sexually assaulted by disclosed, or even that nothing be done
will be liable under Title IX for the lack another student, it may be appropriate about the alleged harassment, the school
of grievance procedures, regardless of for the school to immediately separate should try to determine whether the
whether sexual harassment occurred.47 the two students pending the results of student is afraid of reprisals from the
Moreover, in the absence of effective the school’s investigation. alleged harasser, and inform the student
grievance procedures, if OCR Where a school determines that that Title IX prohibits this sort of
determines that the alleged harassment sexual harassment has occurred, it retaliation and that the school will take
was sufficiently severe, persistent or should take reasonable, timely and strong responsive steps if it occurs. The
pervasive to create a hostile effective corrective action, including school must then takes steps to ensure
environment, a school will be in steps tailored to the specific situation.51 that no retaliation occurs.
violation of Title IX as to the existence As discussed above, where the harasser
Should the student continue to ask for
of a hostile environment, even if the is not a student of the recipient, OCR
confidentiality, the school should take
school was not aware of the harassment will consider the level of control the
all possible steps to investigate and
and thus failed to remedy it.48 school has over the harasser in
In addition, where a school otherwise respond to the complaint consistent
determining what response would be
has actual or constructive notice of a with that request. While confidentiality
appropriate.
hostile environment (as discussed First, appropriate steps should be may limit the school’s ability to fully
above), and fails to remedy the taken to end the harassment. For respond to the complaint—for example,
harassment, then OCR will find a example, a school may need to counsel, the school may not be able to find out
violation even if the student fails to use warn or even take disciplinary action the alleged harasser’s version of events
the school’s existing grievance against the harasser, based on the without at least indirectly revealing the
procedures. severity of the harassment and/or any complainant’s name—the school may
Title IX does not require a school to record of prior incidents.52 In some still be able to take steps to address the
adopt a policy specifically prohibiting cases, it may be appropriate to separate harassment. For example, the school
sexual harassment or to provide the harassed student and the harasser, may be able to counsel the student or
separate grievance procedures for sexual e.g., by changing housing provide general training about sexual
harassment complaints. However, as arrangements 53 or directing the student harassment to the school or portion of
discussed in more detail below, Title IX harasser to have no further contact with the school where the problem was
grievance procedures must provide an the harassed student. It may also be raised. In addition, by investigating the
effective means for responding to appropriate to direct the harasser to complaint to the extent possible—
alleged sex discrimination at the school. apologize to the harassed student. including by reporting it to the Title IX
Thus, where, because of the lack of a Counseling for the harasser may be coordinator or other responsible school
policy or procedures specifically appropriate, as to what constitutes employee designated pursuant to Title
addressing sexual harassment, students harassment and the effects it can have. IX—the school may learn about or be
are unaware of what constitutes sexual In addition, corrective action should able to confirm a pattern of harassment
harassment, or that such conduct is address the effects on those who have based on claims by different students
prohibited sex discrimination, OCR will been subject to harassment. For that they were harassed by the same
not consider the school’s general policy example, if a student was forced to individual.
and procedures relating to sex withdraw from a class because of Prevention
discrimination complaints to be harassment from fellow students, he or
effective.49 she should be given the opportunity to Adopting and publicizing a policy
take the class again. In some instances, specifically prohibiting sexual
Recipient’s Response a school may be required to provide or harassment and having separate
What constitutes a reasonable reimburse the student for professional grievance procedures available for
response to information about possible counseling or other services necessary violations of that policy can help ensure
sexual harassment will differ. Where a to address the effects of the harassment that all students and employees
student, parent, or other individual has on the person subjected to it.54 understand the nature of sexual
filed a complaint or otherwise reported Finally, a school should take steps to harassment and that the school will not
incidents of harassment, the school prevent any further harassment.55 At a tolerate it. Indeed, they might even
must investigate and determine minimum, this includes making sure bring conduct of a sexual nature to the
appropriate steps to resolve the that the harassed students and their school’s attention so that the school can
situation.50 Where information about parents know how to report any further address it before it becomes sufficiently
possible harassment is less direct, the problems and making follow-up severe, persistent or pervasive to create
school’s response to the information inquiries to see if there have been any a hostile environment. Further, a school
may vary depending upon factors such further incidents or any retaliation. In can provide training to administrators,
as: the source and nature of the addition, depending on how widespread teachers, and staff, and age-appropriate
information; the seriousness of the the harassment was and whether there classroom information to students, to
alleged harassment; whether any had been any prior incidents, the school ensure that they understand what types
Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Notices 52179
of conduct can cause sexual harassment parents, faculty, staff); and identifying allegations. The purpose of an insurance
and that they know how to respond. individuals who can explain how the investigation is to determine liability
procedure works. under the insurance policy, and the
Prompt and Equitable Grievance A college or school district must applicable standards (the insurance
Procedures designate at least one employee to contract and applicable state or Federal
Schools are required to adopt and coordinate its efforts to comply with insurance law) may well be different
publish grievance procedures providing and carry out its Title IX from those under Title IX. In addition,
for prompt and equitable resolution of responsibilities.58 The school must a school is not relieved of its
complaints of discrimination on the notify all of its students and employees responsibility to respond to a sexual
basis of sex.57 In the context of peer of the name, office address and harassment complaint filed under its
harassment, OCR has examined a telephone number of the employee(s) grievance procedure by the fact that a
number of elements in determining designated.59 While a school may complaint has been filed with OCR.64
whether a school’s grievance procedures choose to have a number of employees Finally, the United States
are prompt and equitable, including responsible for Title IX matters, it is Constitution guarantees due process to
whether the procedures provide for: advisable to give one official public school students accused of
(1) Notice of the procedure to responsibility for overall coordination infractions such as sexual harassment.
students, parents, and employees; and oversight of all sexual harassment Similarly, state laws may provide
(2) Application of the procedure to complaints to ensure consistent additional rights to students, even at
complaints alleging harassment by practices and standards in the handling private schools. Schools should be
students; of all complaints. Coordination in terms aware of these rights and their legal
(3) Adequate and reliable of recordkeeping is also essential to responsibilities to those students
investigation of complaints by an ensure that the school can and will accused of harassment. Indeed,
impartial investigator, including the identify and resolve recurring problems procedures that ensure the Title IX
opportunity to present witnesses and and the problem of repeat offenders.60 rights of the complainant while at the
other evidence; Finally, the school must make sure that same time according due process to the
(4) Designated time frames for the all designated employees have adequate individual accused of harassment will
major stages of the complaint process; training as to what conduct constitutes lead to sound and supportable
(5) Notice to the parties of the sexual harassment, and are able to decisions. The rights established under
disposition of the complaint; explain how the grievance procedure Title IX must be interpreted consistently
(6) Steps to prevent recurrence of any operates.61 with any federally guaranteed rights
harassment and to correct its effects on Grievance procedures may include involved in a complaint. Recipients
the complainant and others. informal mechanisms for resolving should ensure that steps to accord due
In addition, many schools also sexual harassment complaints, to be process rights to the accused do not
provide an opportunity to appeal the used where the parties agree to do so.62 obstruct or delay the protections
findings and/or remedy. Procedures OCR has frequently advised schools, provided by Title IX to the complainant.
adopted by schools will vary however, that it is not appropriate for a
considerably in specificity and student who is complaining of Notice of Outcome and FERPA
components, reflecting different harassment to be required to work out The Title IX grievance process should
audiences, sizes, administrative the problem directly with the student provide for notice of the outcome and
structures, state or local legal alleged to be harassing him or her, and disposition of a complaint 65 where
requirements, and past experience. In certainly not without appropriate doing so is consistent with a school’s
addition, whether procedures are timely involvement by the school (e.g., obligations under the Family
will vary depending on the complexity participation by a counselor, trained Educational Rights and Privacy Act
and severity of the harassment. mediator, or, where appropriate, a (FERPA) and its regulations.66 The
A grievance procedure applicable to teacher or administrator). In addition, parties to a complaint need information
peer sexual harassment complaints the complainant must be notified of the such as whether or not sexual
cannot be prompt or equitable unless right to end the informal process at any harassment was found to have occurred
students know it exists, how it works, time and begin the formal stage of the and, if so, the steps that the school has
and how to file a complaint. Thus, the complaint resolution process. Title IX taken or will take to correct the
procedures should be written in also permits the use of a student discrimination in order to know if the
language appropriate to the age of the disciplinary procedure not designed complaint has been resolved equitably.
school’s students, easily understood and specifically for Title IX grievances to When determining what information
widely disseminated. Distributing the resolve sex discrimination complaints, will be provided to and about students,
procedures to administrators, or putting as long as the procedure meets the however, a school must consider the
them in the school’s administrative or requirement of affording a complainant requirements of FERPA. FERPA
policy manual, may not be an effective a ‘‘prompt and equitable’’ resolution of generally prohibits a school from
way of providing notice, as these the complaint. In some instances, a releasing personally identifiable
publications are usually not widely complaint may allege harassing conduct information from a student’s education
circulated to and understood by all that constitutes both sex discrimination record without the consent of the
members of the school community. and possible criminal conduct. Police student (or his or her parents, if the
Many schools ensure adequate notice to investigations or reports may be useful student is a minor).67 Thus, FERPA’s
students by: having copies of the in terms of fact-gathering. However, requirements may prevent a school from
procedures available at various because they use different standards informing a complainant of any sanction
locations throughout the school or they may not be dispositive under Title or discipline imposed on a student
campus; publishing the procedures as a IX, and do not relieve the school of its found guilty of harassment, where that
separate document; including a duty to respond promptly.63 Similarly, information is contained in the
summary of the process in all major schools are cautioned about using the student’s education record.68
publications issued by the school results of insurance company FERPA provides that the complainant
(handbooks or catalogs for students, investigations of sexual harassment may learn of actions taken against
52180 Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Notices
another student in certain limited competing views are heard. It can also cause of action against a school for its
circumstances. Under FERPA, a student take other measures to prevent and knowing failure to take appropriate remedial
has the right to inspect and review any eliminate a sexually hostile action in response to the hostile environment
personally identifiable information created by students at the school); Oona R.-
environment, such as instituting
S. v. Santa Rosa City Schools, 890 F. Supp.
contained in the education record of restrictions related to disorderly or 1452 (N.D. Cal. 1995); Davis v. Monroe
another student if that information is disruptive conduct. Moreover, the age of County Bd. of Education, 74 F.3d 1186, 1193
directly related to the first student.69 For the students involved and the location (11th Cir. 1996) (as Title VII is violated where
example, in the case of a disciplinary or forum may affect how the school can a sexually hostile working environment is
record or order requiring the student respond consistent with the First created by co-workers and tolerated by the
harasser not to have contact with the Amendment.76 employer, Title IX is violated where a
complainant, the complainant would be sexually hostile educational environment is
Footnotes created by a fellow student or students and
entitled to review that portion of the
1. This guidance is limited to peer sexual the supervising authorities knowingly failed
record that contains this information;
harassment that creates a hostile to act to eliminate the harassment), vacated,
thus, it would not be a violation of reh’g granted; cf. Murray v. New York
environment. Where a student engages in
FERPA for the school to tell the sexual harassment as an agent or employee University, 57 F.3d at 249 (while court finds
complainant of the order. Also, where of an educational institution, for instance no notice to school, assumes a Title IX cause
the harassment involves a crime of where a student teaching assistant requires a of action for sexual harassment of a medical
violence or a sexual assault, student in his or her class to submit to his student by a patient visiting school clinic).
postsecondary schools are permitted or her sexual advances in order to obtain a One Federal court decision, Rowinsky v.
and may even be required to disclose certain grade in the course, this conduct also Bryan Independent School District, 80 F.3d
the results to the complainant.70 would violate Title IX; however, these types 1006 (5th Cir. 1996), petition for cert. filed
FERPA is enforced by the Department of situations are not addressed in this (July 1, 1996), has held to the contrary. In
guidance. that case, over a strongly worded dissent, the
through its Family Policy Compliance
2. 20 U.S.C. § 1681 et seq. See also 34 court rejected the authority of other Federal
Office, U.S. Department of Education, courts and OCR’s longstanding construction
C.F.R. § 106.31(b). In analyzing sexual
Washington, D.C. 20202. harassment claims, the Department also of Title IX, and held that a school district is
First Amendment applies, as appropriate to the educational not liable under Title IX for peer harassment
context, many of the legal principles unless ‘‘the school district itself directly
In cases of alleged harassment, the applicable to sexual harassment in the work discriminated based on sex,’’ i.e., the school
protections of the First Amendment place, developed under Title VII of the Civil responded differently to sexual harassment
must be considered where issues of Rights Act of 1964, 42 U.S.C. § 2000e–2(a). claims of girls versus boys.
speech or expression are involved. Free See Franklin v. Gwinnett County Public The Rowinsky decision misunderstands a
speech rights apply in the classroom Schools, 503 U.S. 60, 75 (1992) (applying school’s liability under Title IX. Title IX does
(e.g., classroom lectures and Title VII principles in determining that a not make a school responsible for the actions
discussions) 71 and in all other student was entitled to protection from of the harassing student, but rather for its
sexual harassment by a teacher in school own discrimination in failing to act and
education programs and activities of
under Title IX); Murray v. New York permitting the harassment to continue once
public schools (e.g., public meetings University College of Dentistry, 57 F.3d 243, a school official knows that it is happening.
and speakers on campus; campus 249 (2d Cir. 1995) (same); Doe v. Petaluma When a student is sexually harassed by a
debates, school plays and other cultural City School Dist., 830 F. Supp. 1560, 1571– fellow student, and a school official knows
events 72; and student newspapers, 72 (N.D. Cal. 1993) (same), rev’d in part on about it but does not stop it, the school is
journals and other publications 73). other grounds, 54 F.3d 1447 (9th Cir. 1995). permitting an atmosphere of sexual
Title IX is intended to protect In addition, many of the principles discrimination to permeate the educational
students from sex discrimination, not to applicable to racial harassment under Title program. The school is liable for its own
regulate the content of speech. OCR VI of the Civil Rights Act, 42 U.S.C. § 2000d action, or lack of action, in response to this
recognizes that the offensiveness of et seq., and Title VII also apply to sexual discrimination. Title VII cases making
particular expression as perceived by harassment under Title IX. Indeed, Title IX employers responsible for remedying hostile
was modeled on Title VI, Cannon v. environment harassment of one worker by a
some students, standing alone, is not a University of Chicago, 441 U.S. 677, 694 coworker apply this same standard. See, e.g.,
legally sufficient basis to establish a (1979). For information on racial harassment, Ellison v. Brady, 924 F.2d at 881–82; Hall v.
sexually hostile environment under see the Department’s Notice of Investigative Gus Construction Co., 842 F.2d 1010 (8th Cir.
Title IX.74 In order to establish a Guidance for Racial Harassment, 59 Fed. Reg. 1988); Hunter v. Allis-Chalmers Corp., 797
violation of Title IX, the harassment 11,448 (1994). F.2d 1417 (7th Cir. 1986); Snell v. Suffolk,
must be sufficiently severe, persistent, 3. Consistent with Supreme Court 782 F.2d 1094 (2nd Cir. 1986); Robinson v.
or pervasive to limit a student’s ability decisions, see Franklin, 503 U.S. at 75 Jacksonville Shipyards, 760 F. Supp. 1486
to participate in or benefit from the (expressly ruling that the sexual harassment (M.D. Fla. 1991).
education program, or to create a hostile of a student by a teacher violates Title IX), The petition for certiorari in the Rowinsky
the Department has interpreted Title IX as case (July 1, 1996) will likely be ruled on this
or abusive educational environment.75 prohibiting sexual harassment for over a fall.
Moreover, in regulating the conduct of decade. Moreover, it has been OCR’s See e.g., Franklin, 503 U.S. at 63 (conduct
its students to prevent or redress longstanding practice to apply Title IX to of a sexual nature found to support a sexual
discrimination prohibited by Title IX peer harassment. See also Bosley v. Kearney harassment claim under Title IX included
(e.g., in responding to peer harassment R–1 School Dist., 904 F. Supp. 1006, 1023 kissing, sexual intercourse); Meritor Savings
that is sufficiently severe as to create a (W.D. Mo. 1995); Doe v. Petaluma, 830 F. Bank FSB v. Vinson, 477 U.S. 57, 60–61
hostile environment), a school must Supp at 1575–76, motion for reconsideration (1986) (demands for sexual favors, sexual
formulate, interpret and apply its rules granted (July 22, 1996) (reaffirming Title IX advances, fondling, indecent exposure,
so as to protect free speech rights. For liability for peer harassment where the sexual intercourse, rape sufficient to raise
ll
instance, while the First Amendment school knows of the hostile environment but hostile environment claim under Title VII);
fails to take remedial action; applying Title Harris v. Forklift Systems, Inc., 510 U.S. ,
may prohibit a school from restricting VII standard, i.e., no additional, separate 114 S.Ct. 367 (1993) (sexually derogatory
the right of students to express opinions intent requirement); Burrow v. Postville comments and innuendo may support a
about one sex that may be viewed as Community School District, No. C94–1031, sexual harassment claim under Title VII);
derogatory, the school can take steps to 1996 U.S. Dist LEXIS 9147 at *34 (N.D. Iowa Ellison v. Brady, 924 F.2d 872, 873–74, 880
denounce such opinions and ensure that June 17, 1996) (student may bring Title IX (9th Cir. 1991) (allegations sufficient to state
Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Notices 52181
a sexual harassment claim under Title VII Act of 1987); Leija v. Cantutillo Ind. School F.2d 327 (9th Cir. 1979) (same); Blum v. Gulf
included repeated requests for dates, letters Dist., 887 F. Supp. 947, 957 (W.D. Tex. 1995). Oil Corp., 597 F.2d 936 (5th Cir. 1979)
making explicit references to sex and 12. Cf. John Does 1 v. Covington County (same).
describing the harasser’s feelings for School Bd., 884 F. Supp. 462, 464–65 (M.D. 16. See note 3.
plaintiff); Lipsett v. University of Puerto Rico, Ala. 1995) (male students alleging that 17. As with peer harassment by its own
864 F. 2d 881, 903–4 (1st Cir. 1988) (sexually teacher sexually harassed and abused them students, a school’s liability for the
derogatory comments, posting of sexually stated cause of action under Title IX). harassment of its students by others is based
explicit drawing of plaintiff, sexual advances 13. Title IX and the regulations on its obligation to provide an environment
may support sexual harassment claim); implementing it prohibit discrimination ‘‘on free of discrimination. Racial Harassment
Kadiki v. Virginia Commonwealth University, the basis of sex;’’ they do not restrict sexual Investigative Guidance, 59 Fed. Reg. at
892 F. Supp. 746, 751 (E.D. Va. 1995) harassment to those circumstances in which 11,450 (referring to harassment by
(professor’s spanking of a university student the harasser only harasses members of the neighborhood teenagers, guest speaker, and
may constitute sexual conduct under Title opposite sex. See 34 C.F.R. § 106.31. In order parents); Murray, 57 F.3d at 250 (student
IX); Doe v. Petaluma, 830 F. Supp. at 1564– for hostile environment harassment to be participating in university dental clinic
65 (sexually derogatory taunts and innuendo actionable under Title IX, it must create a providing services to the public alleged
can be the basis of a harassment claim); hostile or abusive environment. This can harassment by a patient; while court ruled in
Denver School Dist. #1, OCR Case No. 08–92– occur when a student harasses a member of defendant’s favor because of lack of notice,
1007 (same as to allegations of vulgar the same sex. See Doe v. Petaluma, 830 F. it considered such a claim actionable under
language and obscenities, pictures of nude Supp. at 1564–65, 1575 (female junior high Title IX).
women on office walls and desks, school student alleging sexual harassment by 18. For example, where athletes from a
unwelcome touching, sexually offensive other students, including both boys and girls, visiting team harass the home school’s
jokes, bribery to perform sexual acts, sufficient to raise claim under Title IX). Cf students, the home school may not be able
indecent exposure); Nashoba Regional High John Does 1, 884 F. Supp. at 465 (same as to discipline the students. However, it could
School, OCR Case No. 01–92–1377 (same as to male students’ allegations of sexual encourage the athletes’ school to take
to year-long campaign of derogatory, sexually harassment and abuse by male teacher). It appropriate action to prevent further
explicit graffiti and remarks directed at one can also occur in certain situations when the incidents; if necessary, the home school may
student). harassment is directed at students of both choose not to invite the athletes’ school back.
Davis v. Monroe County, 74 F.3d at 1194, sexes. Chiapuzo v. BLT Operating Co., 826 F. Cf. Danna v. New York Telephone Co, 752 F.
vacated, reh’g granted; Doe v. Petaluma City Supp. 1334 (D. Wyo. 1993) (court found that Supp. 594, 611 (S.D.N.Y. 1990) (telephone
School Dist., 830 F. Supp. at 1571–73; Moire such harassment could violate Title VII). company in violation of Title VII for not
v. Temple University School of Medicine, 613 In many circumstances, harassing conduct taking sufficient action to protect its own
F. Supp. 1360, 1366 (E.D. Pa. 1985), aff’d employee from sexually explicit graffiti at
will be on the basis of sex because the
mem., 800 F.2d 1136 (3d Cir. 1986); see also airport where she was assigned to work, e.g.,
student would not have been subjected to it
Vinson, 477 U.S. at 67; Lipsett, 864 F.2d at contacting airport management to see what
at all had he or she been a member of the
901. remedial measures could be taken).
opposite sex; e.g., where a female student is
Davis v. Monroe County, 74 F.3d at 1193– 19. Henson v. City of Dundee, 682 F.2d
repeatedly propositioned by a male student
94, vacated, reh’g granted; Racial Harassment 897, 903 (11th Cir. 1982) (Title VII case).
(or, for that matter, where a male student is 20. [T]he fact that sex-related conduct was
Guidance, 59 Fed. Reg. at 11,449–50. repeatedly propositioned by a male student).
As explained in Rosa H. v. San Elizario ‘‘voluntary,’’ in the sense that the
In other circumstances, harassing conduct complainant was not forced to participate
Ind. School Dist., 887 F. Supp. 140, 143 will be on the basis of sex where the student
(W.D. Tex. 1995): against her will, is not a defense to a sexual
would not have been affected by it in the harassment suit brought under Title VII
[T]he school district is in the best position to same way or to the same extent had he or she * * *. The correct inquiry is whether [the
be on the lookout for discriminatory conduct been a member of the opposite sex; e.g., subject of the harassment] by her conduct
* * * A ‘‘knew or should have known’’ pornography and sexually explicit jokes in a indicated that the alleged sexual advances
requirement mandates that the school district mostly male shop class are likely to affect the were unwelcome, not whether her actual
monitor its employees and students and few girls in the class more than it will most participation in sexual intercourse was
prevents a situation where the district, of the boys. voluntary.
through its employees or policies, turns a In yet other circumstances, the conduct Vinson, 477 U.S. at 68.
blind eye toward discriminatory conduct. will be on the basis of sex in that the 21. Lipsett, 864 F.2d at 898 (while, in some
8. 34 CFR § 106.8(b). student’s sex was a factor in and/or affected instances, a person may have the
9. However, gender-based peer the nature of the harasser’s conduct. Thus, in responsibility for telling the harasser directly
harassment—that is acts of verbal or physical Chiapuzo, a supervisor made demeaning that the conduct is unwelcome, in other cases
aggression, intimidation, or hostility based remarks to both partners of a married couple a ‘‘consistent failure to respond to suggestive
on sex but not involving sexual activity or working for him, e.g., as to sexual acts he comments or gestures may be sufficient
language—is a form of discrimination (just as wanted to engage in with the wife and how * * *.’’); Danna, 752 F. Supp. at 612 (despite
in the case of harassment based on race or he would be a better lover than the husband. female employee’s own foul language and
national origin). Hicks v. Gates Rubber Co., In both cases, according to the court, the participation in graffiti writing, her
833 F.2d 1406, 1416 (10th Cir. 1987) (Title remarks were gender-driven in that they were complaints to management indicated that the
VII case); McKinney v. Dole, 765 F.2d 1129, made with an intent to demean each member harassment was not welcome); see also Carr
1138 (D.C. Cir. 1985) (Title VII case; assault of the couple because of his or her respective v. Allison Gas Turbine Div., GMC, 32 F.3d
could be sex-based harassment if shown to be sex. See also Steiner v. Showboat Operating 1007, 1011 (7th Cir. 1994) (Title VII case;
unequal treatment that would not have taken Co., 25 F.3d 1458, 1463–64 (9th Cir. 1994) cursing and dirty jokes by female employee
place but for the employee’s sex). (Title VII case). did not show that she welcomed the sexual
10. Cf. Dartmouth Public Schools, OCR 14. Nashoba Regional High School, OCR harassment, given her frequent complaints
Case No. 01–90–1058 (contact between high Case No. 01–92–1397. In Conejo Valley about it: ‘‘Even if . . . [the employee’s]
school coach and students not conduct of a School Dist., OCR Case No. 09–93–1305 (5/ testimony that she talked and acted as she
sexual nature); Analy Union High School 27/94), female students allegedly taunted did [only] in an effort to be ‘one of the boys’
Dist., OCR Case No. 09–92–1249 (same as to another female student about engaging in is . . . discounted, her words and conduct
drama instructor who put his arms around sexual activity; OCR found that the alleged cannot be compared to those of the men and
both male and female students who confided comments were sexually explicit and, if true, used to justify their conduct. . . . The
in him); San Francisco State University, OCR would be sufficiently severe, persistent and asymmetry of positions must be considered.
Case No. 09–94–2038 (same as to faculty pervasive to create a hostile environment. She was one woman; they were many men.
advisor placing her arm around graduate 15. Williamson v. A.G. Edwards & Sons, Her use of [vulgar] terms . . . could not be
student’s shoulder in posing for a picture). Inc., 876 F.2d 69 (8th Cir. 1989), (Title VII deeply threatening.’’).
11. 20 U.S.C. § 1687 (codification of the case) cert. denied 493 U.S. 1089 (1994); 22. Reed v. Shepard, 939 F.2d 484, 486–
Title IX part of the Civil Rights Restoration DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 87, 491–92 (7th Cir. 1991) (no harassment
52182 Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Notices
found under Title VII where female In determining whether harm is sufficient, which involved the same student involved in
employees not only tolerated, but also several factors are to be considered, the complaint). See also Hall v. Gus
participated and instigated the suggestive including frequency, severity, whether the Construction Co. 842 F.2d at 1015 (incidents
joking activities about which she was now conduct was threatening or humiliating of sexual harassment directed at other
complaining); Weinsheimer v. Rockwell Int’l versus a mere offensive utterance, and employees); Hicks v. Gates Rubber, 833 F.2d
Corp., 754 F. Supp. 1559, 1563–64 (D. Fl. whether it unreasonably interfered with work at 1415–16 (same).
1990) (same, where general shop banter was performance. No single factor is required; 41. See Vinson, 477 U.S. at 65–66; Harris,
full of vulgarity and sexual innuendo by men similarly, psychological harm, while 114 S. Ct. at 370–371; see also Hicks v. Gates
and women alike, and plaintiff contributed relevant, is not required. Rubber Co., 833 F.2d 1406, 1416 (10th Cir.
her share to this atmosphere). 31. See Modesto City Schools, OCR Case 1987) (Title VII case).
23. Davis v. Monroe County, 74 F.3d at No. 09–93–1391 (evidence showed that 42. See Harris, 114 S. Ct. at 370–71;
1126 (when interpreting the requirement in several girls were afraid to go to school Andrews v. City of Philadelphia, 895 F.2d
Harris that the harassment must because of the harassment). 1469, 1485–86 (3rd Cir. 1990) (Title VII case;
unreasonably interfere with the plaintiff’s 32. Summerfield Schools, OCR Case No. court directed trial court to consider sexual
performance, 114 S.Ct. at 371, the court 15–92–1029. conduct as well as theft of female employees’
stated: ‘‘* * * if the plaintiff does not 33. See Waltman v. Int’l Paper Co., 875 files and work, destruction of property, and
subjectively perceive the environment to be F.2d 468, 477 (5th Cir. 1989) (Title VII case); anonymous phone calls in determining if
abusive, then the conduct has not actually see also Hall v. Gus Construction Co., 842 there had been sex discrimination); see also
altered the conditions of her learning F.2d at 1015 (evidence of sexual harassment Hall v. Gus Construction Co., 842 F.2d 1094,
environment, and there is no Title IX directed at others is relevant to show hostile 1014 (8th Cir. 1988) (Title VII case); Hicks,
violation’’), vacated, reh’g granted. environment under Title VII); Racial 833 F.2d at 1415; Eden Prairie Schools, Dist.
24. The Supreme Court used a ‘‘reasonable Harassment Investigative Guidance, 59 Fed. #272, OCR Case No. 05–92–1174 (the boys
person’’ standard in Harris, 114 S.Ct. at 370– Reg. at 11,453. made lewd comments about male anatomy
71 to determine whether sexual conduct 34. See, e.g., Andrews, 895 F.2d at 1484 and tormented the girls by pretending to stab
constituted harassment. This standard has (‘‘Harassment is pervasive when ‘incidents of them with rubber knives; while the stabbing
been applied under Title VII to take into harassment occur either in concert or with was not sexual conduct, it was directed at
account the sex of the subject of the regularity’.’’); Moylan v. Maries County, 792 them because of their sex, i.e., because they
harassment, see, e.g., Ellison v. Brady, 924 F.2d 746, 749 (8th Cir. 1986) (Title VII case); were girls). In addition, incidents of racial or
F.2d at 878–79 (applying a ‘‘reasonable Downes v. Federal Aviation Administration, national origin harassment directed at a
women’’ standard to sexual harassment), and 775 F.2d 288, 293 (D.C. Cir. 1985) (same); cf. particular individual may also be aggregated
has been adapted to sexual harassment in Scott v. Sears, Roebuck and Co., 798 F.2d with incidents of sexual or gender
education, Davis v. Monroe County, 74 F.3d 210, 214 (7th Cir. 1986) (Title VII case; harassment directed at that individual in
at 1126 (relying on Harris to adopt an conduct was not pervasive or debilitating). determining the existence of a hostile
objective, reasonable person standard), 35. The U.S. Equal Employment environment. Hicks v. Gates Rubber Co., 833
vacated, reh’g granted; Patricia H. v. Berkeley Opportunity Commission (EEOC) has stated: F.2d at 1416; Jefferies v. Harris Community
Unified School Dist., 830 F. Supp. 1288, 1296 ‘‘The Commission will presume that the Action Ass’n, 615 F.2d 1025, 1032 (5th Cir.
(N.D. Cal. 1993) (adopting a ‘‘reasonable unwelcome, intentional touching of [an 1980) (Title VII case).
victim’’ standard and referring to OCR’s use employee’s] intimate body areas is 43 Racial Harassment Guidance, 59 Fed.
of it); Racial Harassment Guidance, 59 Fed. sufficiently offensive to alter the conditions Reg. at 11450 (discussing how a school may
Reg. at 11,452 (the standard must take into of her working environment and constitute a receive notice).
account the characteristics and violation of Title VII. More so than in the 44. See Yates v. Avco Corp., 819 F.2d 630,
circumstances of victims on a case-by-case case of verbal advances or remarks, a single 634–36 (6th Cir. 1987) (Title VII case); Katz
basis, particularly the victim’s race and age). unwelcome physical advance can seriously v. Dole, 709 F.2d 251, 256 (4th Cir. 1983)
25. Harris, 114 S.Ct. at 371; Racial poison the victim’s working environment.’’ (same); See also Racial Harassment
Harassment Guidance, 59 Fed. Reg. at 11449 EEOC Policy Guidance on Current Issues of Investigative Guidance, 59 Fed. Reg. at
and 11452. Sexual Harassment, p. 17. See also Barrett v. 11,450.
26. Davis v. Monroe County, 74 F.3d at Omaha National Bank, 584 F. Supp. 22, 30 45. Cf. Katz v. Dole, 709 F.2d at 256 (the
1126 (no Title IX violation unless the (D. Neb. 1983), aff’d, 726 F.2d 424 (8th Cir. employer ‘‘should have been aware of the
conduct has ‘‘actually altered the conditions 1984) (hostile environment created under * * * problem both because of its pervasive
of [the student’s] learning environment’’), Title VII by isolated events, i.e., occurring character and because of Katz’ specific
vacated, reh’g granted; Lipsett, 864 F.2d at while traveling to and during a two day complaints * * *’’); Smolsky v. Consolidated
898 (‘‘altered’’ the educational environment); conference, including the coworker’s talking Rail Corp., 780 F. Supp. 283, 293 (E.D. Pa.
Patricia H., 830 F. Supp. at 1297 (sexual to plaintiff about sexual activities and 1991), reconsideration denied, 785 F. Supp.
harassment could be found where conduct touching her in offensive manner while they 71 (E.D. Pa. 1992) (‘‘where the harassment is
interfered with student’s ability to learn); see were inside a vehicle from which she could apparent to all others in the work place,
also Andrews, 895 F.2d at 1482 (Title VII not escape). supervisors and coworkers, this may be
case). 36. See also Ursuline College, OCR Case sufficient to put the employer on notice of
27. Harris, 114 S.Ct. at 371. No. 05–91–2068 (A single incident of the sexual harassment’’ under Title VII);
28. See e.g., Doe v. Petaluma, 830 F. Supp comments on a male student’s muscles Jensen v. Eveleth Taconite Co., 824 F. Supp.
at 1566 (student so upset about harassment arguably not sexual; however, assuming they 847, 887 (D. Minn. 1993) (Title Vii case;
by other students that she was forced to were, not severe enough to create a hostile ‘‘[s]exual harassment * * * was so pervasive
transfer several times, including finally to a environment). that an inference of knowledge arises * * *.
private school); Modesto City Schools, OCR 37. See, e.g., McKinney, 765 F.2d at 1138– The acts of sexual harassment detailed herein
Case No. 09–93–1391 (evidence showed that 40; Robinson v. Jacksonville Shipyard, 760 F. were too common and continuous to have
one girl’s grades dropped while the Supp. at 1522. escaped Eveleth Mines had its management
harassment was occurring); Weaverville 38. Cf. Patricia H., 830 F. Supp. at 1297. been reasonably alert.’’); Cummings v. Walsh
Elementary School, OCR Case No. 09–91– 39. See also Barrett v. Omaha National Construction Co., 561 F. Supp. 872, 878 (S.D.
1116 (students left school due to the Bank, 584 F. Supp. at 24 (harassment Ga. 1983) (‘‘* * * allegations not only of the
harassment). Compare with College of occurring in a car from which the plaintiff [employee] registering her complaints with
Alameda, OCR Case No. 09–90–2104 (student could not escape was deemed particularly her foreman * * * but also that sexual
not in instructor’s class and no evidence of severe). harassment was so widespread that
any effect on student’s educational benefits 40. Midwest City-Del City Public Schools, defendant had constructive notice of it’’
or services, so no hostile environment). OCR Case No. 06–92–1012 (finding of under Title VII); but see Murray, 57 F.3d at
29. Doe v. Petaluma, 830 F. Supp. at 1566. racially hostile environment based in part on 250–51 (that other students knew of the
30. See Harris, 114 S.Ct. at 371, where the several racial incidents at school shortly conduct was not enough to charge the school
Court held that tangible harm is not required. before incidents in complaint, a number of with notice, particularly where these
Federal Register / Vol. 61, No. 194 / Friday, October 4, 1996 / Notices 52183
students may not have been aware that the Sacramento City Unified School Dist., OCR information directly related to a student. 20
conduct was offensive or abusive). Case No. 09–83–1063 (same as to workshops U.S.C. § 1232(g)(4).
46. See 34 C.F.R. § 106.8(b). Moreover, for management and administrative 69. 20 U.S.C. § 1232g(a)(1)(A); 34 C.F.R.
schools have an obligation to ensure that the personnel, in-service training for non- § 99.12(a).
educational environment is free of management personnel). 70. Colleges and other postsecondary
harassment, and cannot fulfill this obligation 57. 34 C.F.R § 106.8(b). This requirement schools are required to disclose the outcome
without determining whether sexual has been part of the Title IX regulations, in cases involving sexual assault, 20 U.S.C.
harassment complaints have merit. since their inception in 1975. Thus, schools § 1092(f). In addition, information about
47. Fenton Community High School Dist. have been required to have these procedures ‘‘crimes of violence’’ can be disclosed to the
#100, OCR Case No. 05–92–1104. in place since that time. At the elementary complainant consistent with FERPA, 20
48. See Racial Harassment Investigative and secondary level, this responsibility U.S.C. § 1232(g)(b)(6).
Guidance, 59 Fed. Reg. at 11,450. generally lies with the school district. At the 71. See, e.g., George Mason University,
49. See Vinson, 477 U.S. at 72–73. postsecondary level, there may be a OCR Case No. 03–94–2086 (law professor’s
50. Schools have an obligation to ensure procedure for a particular campus or college,
use of a racially derogatory word, as part of
that the educational environment is free of or for an entire university system.
an instructional hypothetical regarding
harassment, and cannot fulfill this obligation 58. 34 C.F.R. § 106.8(a).
verbal torts, did not constitute racial
without determining where sexual 59. Id.
harassment complaints have merit. Moreover, 60. University of California, Santa Cruz, harassment); Portland School Dist. 1J, OCR
failure to respond to a complaint does not OCR Case No. 09–93–2141; Sonoma State Case No. 10–94–1117 (reading teacher’s
meet the ‘‘prompt and equitable’’ University, OCR Case No. 09–93–2131. This choice to substitute a less offensive term for
requirements for grievance procedures under is true for formal as well as informal a racial slur when reading a historical novel
Title IX. complaints. See University of Maine at aloud in class constituted an academic
51. Cf. Bundy v. Jackson, 641 F.2d 934, 947 Machias, OCR Case No. 01–94–6001 (school’s decision on presentation of curriculum, not
(D.C. Cir. 1981) (employers should take new procedures not found in violation of racial harassment).
corrective and preventive measures under Title IX in part because they require written 72. See Iota Xi Chapter of Sigma Chi
Title VII); accord, Jones v. Flagship Int’l, 793 records for informal as well as formal Fraternity v. George Mason University, 993
F.2d 714, 719–720 (5th Cir. 1986) (employer resolutions). These records need not be kept F.2d 386 (4th Cir. 1993) (fraternity skit in
should take prompt remedial action under in a student’s individual file. which white male student dressed as an
Title VII). Racial Harassment Investigative 61. For example, in Cape Cod Community offensive caricature of a black female
Guidance, 59 Fed. Reg. at 11,450. College, OCR Case No. 01–93–2047, the constituted student expression).
52. Waltman v. Int’l Paper Co., 875 F.2d at College was found to have violated Title IX 73. See Florida Agricultural and
479 (appropriateness of employer’s remedial in part because the person identified by the Mechanical University, OCR Case No. 04–92–
action under Title VII will depend on the school as the Title IX coordinator was 2054 (no discrimination where campus
severity and persistence of the harassment unfamiliar with Title IX, had no training, and newspaper, which welcomed individual
and the effectiveness of any initial remedial did not even realize he was the coordinator. opinions of all sorts, printed article
steps); Dornhecker v. Malibu Grand Prix 62. Indeed, in University of Maine at expressing one student’s viewpoint on white
Corp., 828 F.2d 307, 309–10 (5th Cir. 1987) Machias, OCR Case No. 01–94–6001, OCR students on campus).
(Title VII case; employer arranged for victim found the school’s procedures to be 74. See, e.g., University of Illinois, OCR
to no longer work with alleged harasser). inadequate because only formal complaints Case No. 05–94–2104 (fact that university’s
53. Offering assistance in changing living were investigated. While a school isn’t use of Native American symbols was
arrangements is one of the actions required required to have an established procedure for offensive to some Native American students
of colleges and universities by the Campus resolving informal complaints, they and employees was not dispositive, in and of
Security Act in cases of rape and sexual nevertheless must be addressed in some way. itself, in assessing a racially hostile
assault. See 20 U.S.C. 1092(f). However, where there are indications that the environment claim under Title VI).
54. Leija, 878 F. Supp. at 957 (medical and same individual may be harassing others,
75. Cf. Vinson, 477 U.S. at 67 (the ‘‘mere
mental health treatment and any special then it may not be appropriate to resolve an
utterance of an ethnic or racial epithet which
education needed as a result of the informal complaint without taking steps to
engenders offensive feelings in an employee’’
harassment); University of California at Santa address the entire situation.
Cruz, OCR Case No. 09–93–2141 (extensive 63. Academy School Dist. No. 20, OCR would not affect the conditions of
individual and group counseling); Eden Case No. 08–93–1023 (school’s response employment to a sufficient degree to violate
Prairie Schools, Dist. #272, OCR Case No. 05– determined to be insufficient where it Title VII), quoting Henson, 682 F.2d at 904.
92–1174 (counseling). stopped its investigation after complaint filed 76. Compare Bethel School Dist. No. 403 v.
55. Even if the harassment stops without with police); Mills Public School Dist., OCR Fraser, 478 U.S. 675, 685 (1986) (Court
the school’s involvement, the school may Case No. 01–93–1123 (not sufficient for upheld discipline of high school student for
still need to take steps to prevent or deter any school to wait until end of police making lewd speech to student assembly,
future harassment—to inform the school investigation). noting that ‘‘[t]he undoubted freedom to
community that harassment will not be 64. Cf. EEOC v. Board of Governors of State advocate unpopular and controversial issues
tolerated. Fuller v. City of Oakland, 47 F.3d Colleges and Universities, 957 F.2d 424 (7th in schools and classrooms must be balanced
1522, 1528–29 (9th Cir. 1995). Cir.) (Title VII case), cert. denied, 113 S.Ct. against the society’s countervailing interest
56. Tacoma School Dist. No. 10, OCR Case 299 (1992); Johnson v. Palma, 931 F.2d 203 in teaching students the boundaries of
No. 10–94–1079 (due to the large number of (2nd Cir. 1991) (same). socially appropriate behavior.’’), with Iota XI
students harassed by an employee, the 65. University of California, Santa Cruz, 993 F.2d 386 (holding that, notwithstanding
extended period of time over which the OCR Case No. 09–93–2141; Cerro Cosa a university’s mission to create a culturally
harassment occurred, and the failure of Community College, OCR Case No. 09–92– diverse learning environment and its
several of the students to report the 2120. substantial interest in maintaining a campus
harassment, school committed as part of 66. See 20 U.S.C. § 1232g; 34 C.F.R. Part free of discrimination, it could not punish
corrective action plan to providing training 99. students who engaged in an offensive skit
for students); Los Medanos College, OCR Case 67. Id. with racist and sexist overtones).
No. 09–84–2092 (as part of corrective action 68. Under FERPA, education records are
plan, school committed to providing sexual defined as records, documents, or other [FR Doc. 96–25283 Filed 10–3–96; 8:45 am]
harassment seminar for campus employees); materials maintained by a school that contain BILLING CODE 4000–01–P