State of Texas, et al. v. United States of America, et al.

Filing 1

COMPLAINT against Vanita Gupta, John B. King, Loretta E Lynch, David Michaels, Thomas E. Perez, United States Department of Education, United States Department of Justice, United States Department of Labor, United States Equal Employment Opportunity Commission, United States of America, Jenny R. Yang filed by State of Utah, Heber-Overgaard Unified School District (AZ), Harrold Independent School District (TX), State of Texas, State of West Virginia, Arizona Department of Education, State of Alabama, State of Oklahoma, State of Georgia, Paul LePage, State of Wisconsin, State of Louisiana, State of Tennessee. (Filing fee $400; Receipt number 0539-7604002) Plaintiff will submit summons(es) for issuance. In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the # Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: #1 Cover Sheet, #2 Exhibit(s), #3 Exhibit(s), #4 Exhibit(s), #5 Exhibit(s), #6 Exhibit(s), #7 Exhibit(s), #8 Exhibit(s), #9 Exhibit(s), #10 Exhibit(s), #11 Exhibit(s), #12 Exhibit(s), #13 Exhibit(s), #14 Exhibit(s), #15 Exhibit(s), #16 Additional Page(s)) (Nimocks, Austin)

UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
THE ASSISTANT SECRETARY

Questions and Answers on Title IX and Sexual Violence1
Title IX of the Education Amendments of 1972 (“Title IX”)2 is a federal civil rights law that prohibits
discrimination on the basis of sex in federally funded education programs and activities. All public
and private elementary and secondary schools, school districts, colleges, and universities receiving
any federal financial assistance (hereinafter “schools”, “recipients”, or “recipient institutions”)
must comply with Title IX.3
On April 4, 2011, the Office for Civil Rights (OCR) in the U.S. Department of Education issued a Dear
Colleague Letter on student-on-student sexual harassment and sexual violence (“DCL”).4 The DCL
explains a school’s responsibility to respond promptly and effectively to sexual violence against
students in accordance with the requirements of Title IX.5 Specifically, the DCL:


Provides guidance on the unique concerns that arise in sexual violence cases, such as a
school’s independent responsibility under Title IX to investigate (apart from any separate
criminal investigation by local police) and address sexual violence.

1

The Department has determined that this document is a “significant guidance document” under the Office of
Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007),
available at www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_good_guidance.pdf. The Office for
Civil Rights (OCR) issues this and other policy guidance to provide recipients with information to assist them in meeting
their obligations, and to provide members of the public with information about their rights, under the civil rights laws
and implementing regulations that we enforce. OCR’s legal authority is based on those laws and regulations. This
guidance does not add requirements to applicable law, but provides information and examples to inform recipients
about how OCR evaluates whether covered entities are complying with their legal obligations. If you are interested in
commenting on this guidance, please send an e-mail with your comments to [e-mail], or write to the following
address: Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue, SW, Washington, D.C. 20202.
2
20 U.S.C. § 1681 et seq.
3
Throughout this document the term “schools” refers to recipients of federal financial assistance that operate
educational programs or activities. For Title IX purposes, at the elementary and secondary school level, the recipient
generally is the school district; and at the postsecondary level, the recipient is the individual institution of higher
education. An educational institution that is controlled by a religious organization is exempt from Title IX to the extent
that the law’s requirements conflict with the organization’s religious tenets. 20 U.S.C. § 1681(a)(3); 34 C.F.R. §
106.12(a). For application of this provision to a specific institution, please contact the appropriate OCR regional office.
4
Available at http://www.ed.gov/ocr/letters/colleague-201104.html.
5
Although this document and the DCL focus on sexual violence, the legal principles generally also apply to other forms
of sexual harassment.

EXHIBIT B



Provides guidance and examples about key Title IX requirements and how they relate to
sexual violence, such as the requirements to publish a policy against sex discrimination,
designate a Title IX coordinator, and adopt and publish grievance procedures.



Discusses proactive efforts schools can take to prevent sexual violence.



Discusses the interplay between Title IX, the Family Educational Rights and Privacy Act
(“FERPA”),6 and the Jeanne Clery Disclosure of Campus Security and Campus Crime
Statistics Act (“Clery Act”)7 as it relates to a complainant’s right to know the outcome of his
or her complaint, including relevant sanctions imposed on the perpetrator.



Provides examples of remedies and enforcement strategies that schools and OCR may use
to respond to sexual violence.

The DCL supplements OCR’s Revised Sexual Harassment Guidance: Harassment of Students by
School Employees, Other Students, or Third Parties, issued in 2001 (2001 Guidance).8 The 2001
Guidance discusses in detail the Title IX requirements related to sexual harassment of students by
school employees, other students, or third parties. The DCL and the 2001 Guidance remain in full
force and we recommend reading these Questions and Answers in conjunction with these
documents.
In responding to requests for technical assistance, OCR has determined that elementary and
secondary schools and postsecondary institutions would benefit from additional guidance
concerning their obligations under Title IX to address sexual violence as a form of sexual
harassment. The following questions and answers further clarify the legal requirements and
guidance articulated in the DCL and the 2001 Guidance and include examples of proactive efforts
schools can take to prevent sexual violence and remedies schools may use to end such conduct,
prevent its recurrence, and address its effects. In order to gain a complete understanding of these
legal requirements and recommendations, this document should be read in full.
Authorized by
/s/
Catherine E. Lhamon
Assistant Secretary for Civil Rights

April 29, 2014

6

20 U.S.C. §1232g; 34 C.F.R. Part 99.
20 U.S.C. §1092(f).
8
Available at http://www.ed.gov/ocr/docs/shguide.html.
7

ii

Notice of Language Assistance
Questions and Answers on Title IX and Sexual Violence
Notice of Language Assistance: If you have difficulty understanding English, you may, free of charge,
request language assistance services for this Department information by calling 1-800-USA-LEARN
(1-800-872-5327) (TTY: 1-800-877-8339), or email us at: [e-mail].
Aviso a personas con dominio limitado del idioma inglés: Si usted tiene alguna dificultad en entender
el idioma inglés, puede, sin costo alguno, solicitar asistencia lingüística con respecto a esta información
llamando al 1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-877-8339), o envíe un mensaje de
correo electrónico a: [e-mail].
給英語能力有限人士的通知: 如果您不懂英語， 或者使用英语有困难，您可以要求獲得向大眾提
供的語言協助服務，幫助您理解教育部資訊。這些語言協助服務均可免費提供。如果您需要有關
口譯或筆譯服務的詳細資訊，請致電 1-800-USA-LEARN (1-800-872-5327) (聽語障人士專線：
1-800-877-8339),或電郵: [e-mail].。
Thông báo dành cho những người có khả năng Anh ngữ hạn chế:
u qu v p
n tron
việc iểu An n ữ t ì qu v c t ể yêu cầu các d c vụ ỗ trợ n ôn n ữ c o các tin t c c
d n c o
côn c ún . Các d c vụ ỗ trợ n ôn n ữ n y đều miễn p í. u qu v muốn bi t t êm c i ti t về các
d c vụ p iên d c
y t ôn d c , xin vui lòn ọi số 1-800-USA-LEARN (1-800-872-5327) (TTY:
1-800-877-8339), o c email: [e-mail].
영어 미숙자를 위한 공고: 영어를 이해하는 데 어려움이 있으신 경우, 교육부 정보 센터에 일반인
대상 언어 지원 서비스를 요청하실 수 있습니다. 이러한 언어 지원 서비스는 무료로 제공됩니다.
통역이나 번역 서비스에 대해 자세한 정보가 필요하신 경우, 전화번호 1-800-USA-LEARN (1-800872-5327) 또는 청각 장애인용 전화번호 1-800-877-8339 또는 이메일주소
[e-mail] 으로 연락하시기 바랍니다.
Paunawa sa mga Taong Limitado ang Kaalaman sa English: Kung nahihirapan kayong makaintindi
ng English, maaari kayong humingi ng tulong ukol dito sa inpormasyon ng Kagawaran mula sa
nagbibigay ng serbisyo na pagtulong kaugnay ng wika. Ang serbisyo na pagtulong kaugnay ng wika ay
libre. Kung kailangan ninyo ng dagdag na impormasyon tungkol sa mga serbisyo kaugnay ng
pagpapaliwanag o pagsasalin, mangyari lamang tumawag sa 1-800-USA-LEARN (1-800-872-5327)
(TTY: 1-800-877-8339), o mag-email sa: [e-mail].
Уведомление для лиц с ограниченным знанием английского языка: Если вы испытываете
трудности в понимании английского языка, вы можете попросить, чтобы вам предоставили
перевод информации, которую Министерство Образования доводит до всеобщего сведения. Этот
перевод предоставляется бесплатно. Если вы хотите получить более подробную информацию об
услугах устного и письменного перевода, звоните по телефону 1-800-USA-LEARN (1-800-8725327) (служба для слабослышащих: 1-800-877-8339), или отправьте сообщение по адресу:
[e-mail].

iii

TABLE OF CONTENTS
Notice of Language Assistance ................................................................................................... iii
A. A School’s Obligation to Respond to Sexual Violence ............................................................ 1
A-1. What is sexual violence? ....................................................................................................... 1
A-2. How does Title IX apply to student-on-student sexual violence? ........................................ 1
A-3. How does OCR determine if a hostile environment has been created? .............................. 1
A-4. When does OCR consider a school to have notice of student-on-student sexual
violence? ............................................................................................................................... 2
A-5. What are a school’s basic responsibilities to address student-on-student sexual
violence? ............................................................................................................................... 2
A-6. Does Title IX cover employee-on-student sexual violence, such as sexual abuse of
children? ............................................................................................................................... 3
B. Students Protected by Title IX .............................................................................................. 5
B-1. Does Title IX protect all students from sexual violence? ...................................................... 5
B-2. How should a school handle sexual violence complaints in which the complainant
and the alleged perpetrator are members of the same sex? ............................................... 5
B-3. What issues may arise with respect to students with disabilities who experience
sexual violence? .................................................................................................................... 6
B-4. What issues arise with respect to international students and undocumented
students who experience sexual violence? .......................................................................... 7
B-5. How should a school respond to sexual violence when the alleged perpetrator is
not affiliated with the school? .............................................................................................. 9
C. Title IX Procedural Requirements ......................................................................................... 9
C-1. What procedures must a school have in place to prevent sexual violence and
resolve complaints? .............................................................................................................. 9
C-2. What information must be included in a school’s notice of nondiscrimination? .............. 10
C-3. What are a Title IX coordinator’s responsibilities? ............................................................. 10
C-4. Are there any employees who should not serve as the Title IX coordinator? ................... 11
C-5. Under Title IX, what elements should be included in a school’s procedures for
responding to complaints of sexual violence?.................................................................... 12
C-6. Is a school required to use separate grievance procedures for sexual violence
complaints? ......................................................................................................................... 14
iv

D. Responsible Employees and Reporting ................................................................................ 14
D-1. Which school employees are obligated to report incidents of possible sexual
violence to school officials? ................................................................................................ 14
D-2. Who is a “responsible employee”? ..................................................................................... 15
D-3. What information is a responsible employee obligated to report about an incident
of possible student-on-student sexual violence? ............................................................... 16
D-4. What should a responsible employee tell a student who discloses an incident of
sexual violence? .................................................................................................................. 16
D-5. If a student informs a resident assistant/advisor (RA) that he or she was subjected
to sexual violence by a fellow student, is the RA obligated under Title IX to report
the incident to school officials? .......................................................................................... 17
E. Confidentiality and a School’s Obligation to Respond to Sexual Violence ............................. 18
E-1. How should a school respond to a student’s request that his or her name not be
disclosed to the alleged perpetrator or that no investigation or disciplinary action
be pursued to address the alleged sexual violence? .......................................................... 18
E-2. What factors should a school consider in weighing a student’s request for
confidentiality? ................................................................................................................... 21
E-3. What are the reporting responsibilities of school employees who provide or
support the provision of counseling, advocacy, health, mental health, or sexual
assault-related services to students who have experienced sexual violence? .................. 22
E-4. Is a school required to investigate information regarding sexual violence incidents
shared by survivors during public awareness events, such as “Take Back the
Night”? ................................................................................................................................ 24
F. Investigations and Hearings ................................................................................................ 24
F-1. What elements should a school’s Title IX investigation include? ....................................... 24
F-2. What are the key differences between a school’s Title IX investigation into
allegations of sexual violence and a criminal investigation? .............................................. 27
F-3. How should a school proceed when campus or local law enforcement agencies are
conducting a criminal investigation while the school is conducting a parallel Title IX
investigation? ...................................................................................................................... 28
F-4. Is a school required to process complaints of alleged sexual violence that occurred
off campus?......................................................................................................................... 29
F-5. Must a school allow or require the parties to be present during an entire hearing? ........ 30
v

F-6. May every witness at the hearing, including the parties, be cross-examined? ................. 31
F-7. May the complainant’s sexual history be introduced at hearings? ................................... 31
F-8. What stages of the investigation are included in the 60-day timeframe referenced
in the DCL as the length for a typical investigation? .......................................................... 31
G. Interim Measures ............................................................................................................... 32
G-1. Is a school required to take any interim measures before the completion of its
investigation? ...................................................................................................................... 32
G-2. How should a school determine what interim measures to take? .................................... 33
G-3. If a school provides all students with access to counseling on a fee basis, does that
suffice for providing counseling as an interim measure? ................................................... 33
H. Remedies and Notice of Outcome ....................................................................................... 34
H-1. What remedies should a school consider in a case of student-on-student sexual
violence? ............................................................................................................................. 34
H-2. If, after an investigation, a school finds the alleged perpetrator responsible and
determines that, as part of the remedies for the complainant, it must separate the
complainant and perpetrator, how should the school accomplish this if both
students share the same major and there are limited course options? ............................ 36
H-3. What information must be provided to the complainant in the notice of the
outcome? ............................................................................................................................ 36
I. Appeals .............................................................................................................................. 37
I-1. What are the requirements for an appeals process? ......................................................... 37
I-2. Must an appeal be available to a complainant who receives a favorable finding but
does not believe a sanction that directly relates to him or her was sufficient? ................ 38
J. Title IX Training, Education and Prevention ......................................................................... 38
J-1. What type of training on Title IX and sexual violence should a school provide to its
employees? ......................................................................................................................... 38
J-2. How should a school train responsible employees to report incidents of possible
sexual harassment or sexual violence? .............................................................................. 39
J-3. What type of training should a school provide to employees who are involved in
implementing the school’s grievance procedures? ............................................................ 40
J-4. What type of training on sexual violence should a school provide to its students? .......... 41

vi

K. Retaliation .......................................................................................................................... 42
K-1. Does Title IX protect against retaliation? ........................................................................... 42
L. First Amendment ................................................................................................................ 43
L-1. How should a school handle its obligation to respond to sexual harassment and
sexual violence while still respecting free-speech rights guaranteed by the
Constitution?....................................................................................................................... 43
M. The Clery Act and the Violence Against Women Reauthorization Act of 2013 ....................... 44
M-1. How does the Clery Act affect the Title IX obligations of institutions of higher
education that participate in the federal student financial aid programs? ....................... 44
M-2. Were a school’s obligations under Title IX and the DCL altered in any way by the
Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, including
Section 304 of that Act, which amends the Clery Act?....................................................... 44
N. Further Federal Guidance .................................................................................................... 45
N-1. Whom should I contact if I have additional questions about the DCL or OCR’s other
Title IX guidance? ................................................................................................................ 45
N-2. Are there other resources available to assist a school in complying with Title IX and
preventing and responding to sexual violence? ................................................................. 45

vii

A. A School’s Obligation to Respond to Sexual Violence
A-1. What is sexual violence?
Answer: Sexual violence, as that term is used in this document and prior OCR guidance,
refers to physical sexual acts perpetrated against a person’s will or where a person is
incapable of giving consent (e.g., due to the student’s age or use of drugs or alcohol, or
because an intellectual or other disability prevents the student from having the capacity
to give consent). A number of different acts fall into the category of sexual violence,
including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. Sexual
violence can be carried out by school employees, other students, or third parties. All such
acts of sexual violence are forms of sex discrimination prohibited by Title IX.
A-2. How does Title IX apply to student-on-student sexual violence?
Answer: Under Title IX, federally funded schools must ensure that students of all ages are
not denied or limited in their ability to participate in or benefit from the school’s
educational programs or activities on the basis of sex. A school violates a student’s rights
under Title IX regarding student-on-student sexual violence when the following conditions
are met: (1) the alleged conduct is sufficiently serious to limit or deny a student’s ability to
participate in or benefit from the school’s educational program, i.e. creates a hostile
environment; and (2) the school, upon notice, fails to take prompt and effective steps
reasonably calculated to end the sexual violence, eliminate the hostile environment,
prevent its recurrence, and, as appropriate, remedy its effects.9
A-3. How does OCR determine if a hostile environment has been created?
Answer: As discussed more fully in OCR’s 2001 Guidance, OCR considers a variety of
related factors to determine if a hostile environment has been created; and also considers
the conduct in question from both a subjective and an objective perspective. Specifically,
OCR’s standards require that the conduct be evaluated from the perspective of a
reasonable person in the alleged victim’s position, considering all the circumstances. The
more severe the conduct, the less need there is to show a repetitive series of incidents to
prove a hostile environment, particularly if the conduct is physical. Indeed, a single or
isolated incident of sexual violence may create a hostile environment.

9

This is the standard for administrative enforcement of Title IX and in court cases where plaintiffs are seeking
injunctive relief. See 2001 Guidance at ii-v, 12-13. The standard in private lawsuits for monetary damages is actual
knowledge and deliberate indifference. See Davis v. Monroe Cnty Bd. of Educ., 526 U.S. 629, 643 (1999).

Page 1 – Questions and Answers on Title IX and Sexual Violence

A-4. When does OCR consider a school to have notice of student-on-student sexual violence?
Answer: OCR deems a school to have notice of student-on-student sexual violence if a
responsible employee knew, or in the exercise of reasonable care should have known,
about the sexual violence. See question D-2 regarding who is a responsible employee.
A school can receive notice of sexual violence in many different ways. Some examples of
notice include: a student may have filed a grievance with or otherwise informed the
school’s Title IX coordinator; a student, parent, friend, or other individual may have
reported an incident to a teacher, principal, campus law enforcement, staff in the office of
student affairs, or other responsible employee; or a teacher or dean may have witnessed
the sexual violence.
The school may also receive notice about sexual violence in an indirect manner, from
sources such as a member of the local community, social networking sites, or the media.
In some situations, if the school knows of incidents of sexual violence, the exercise of
reasonable care should trigger an investigation that would lead to the discovery of
additional incidents. For example, if school officials receive a credible report that a
student has perpetrated several acts of sexual violence against different students, that
pattern of conduct should trigger an inquiry as to whether other students have been
subjected to sexual violence by that student. In other cases, the pervasiveness of the
sexual violence may be widespread, openly practiced, or well-known among students or
employees. In those cases, OCR may conclude that the school should have known of the
hostile environment. In other words, if the school would have found out about the sexual
violence had it made a proper inquiry, knowledge of the sexual violence will be imputed
to the school even if the school failed to make an inquiry. A school’s failure to take
prompt and effective corrective action in such cases (as described in questions G-1 to G-3
and H-1 to H-3) would violate Title IX even if the student did not use the school’s
grievance procedures or otherwise inform the school of the sexual violence.
A-5. What are a school’s basic responsibilities to address student-on-student sexual
violence?
Answer: When a school knows or reasonably should know of possible sexual violence, it
must take immediate and appropriate steps to investigate or otherwise determine what
occurred (subject to the confidentiality provisions discussed in Section E). If an
investigation reveals that sexual violence created a hostile environment, the school must
then take prompt and effective steps reasonably calculated to end the sexual violence,
eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its
Page 2 – Questions and Answers on Title IX and Sexual Violence

effects. But a school should not wait to take steps to protect its students until students
have already been deprived of educational opportunities.
Title IX requires a school to protect the complainant and ensure his or her safety as
necessary, including taking interim steps before the final outcome of any investigation.10
The school should take these steps promptly once it has notice of a sexual violence
allegation and should provide the complainant with periodic updates on the status of the
investigation. If the school determines that the sexual violence occurred, the school must
continue to take these steps to protect the complainant and ensure his or her safety, as
necessary. The school should also ensure that the complainant is aware of any available
resources, such as victim advocacy, housing assistance, academic support, counseling,
disability services, health and mental health services, and legal assistance, and the right to
report a crime to campus or local law enforcement. For additional information on interim
measures, see questions G-1 to G-3.
If a school delays responding to allegations of sexual violence or responds inappropriately,
the school’s own inaction may subject the student to a hostile environment. If it does, the
school will also be required to remedy the effects of the sexual violence that could
reasonably have been prevented had the school responded promptly and appropriately.
For example, if a school’s ignoring of a student’s complaints of sexual assault by a fellow
student results in the complaining student having to remain in classes with the other
student for several weeks and the complaining student’s grades suffer because he or she
was unable to concentrate in these classes, the school may need to permit the
complaining student to retake the classes without an academic or financial penalty (in
addition to any other remedies) in order to address the effects of the sexual violence.
A-6. Does Title IX cover employee-on-student sexual violence, such as sexual abuse of
children?
Answer: Yes. Although this document and the DCL focus on student-on-student sexual
violence, Title IX also protects students from other forms of sexual harassment (including
sexual violence and sexual abuse), such as sexual harassment carried out by school
employees. Sexual harassment by school employees can include unwelcome sexual
advances; requests for sexual favors; and other verbal, nonverbal, or physical conduct of a
sexual nature, including but not limited to sexual activity. Title IX’s prohibition against

10

Throughout this document, unless otherwise noted, the term “complainant” refers to the student who allegedly
experienced the sexual violence.

Page 3 – Questions and Answers on Title IX and Sexual Violence

sexual harassment generally does not extend to legitimate nonsexual touching or other
nonsexual conduct. But in some circumstances, nonsexual conduct may take on sexual
connotations and rise to the level of sexual harassment. For example, a teacher
repeatedly hugging and putting his or her arms around students under inappropriate
circumstances could create a hostile environment. Early signs of inappropriate behavior
with a child can be the key to identifying and preventing sexual abuse by school
personnel.
A school’s Title IX obligations regarding sexual harassment by employees can, in some
instances, be greater than those described in this document and the DCL. Recipients
should refer to OCR’s 2001 Guidance for further information about Title IX obligations
regarding harassment of students by school employees. In addition, many state and local
laws have mandatory reporting requirements for schools working with minors. Recipients
should be careful to satisfy their state and local legal obligations in addition to their Title
IX obligations, including training to ensure that school employees are aware of their
obligations under such state and local laws and the consequences for failing to satisfy
those obligations.
With respect to sexual activity in particular, OCR will always view as unwelcome and
nonconsensual sexual activity between an adult school employee and an elementary
school student or any student below the legal age of consent in his or her state. In cases
involving a student who meets the legal age of consent in his or her state, there will still
be a strong presumption that sexual activity between an adult school employee and a
student is unwelcome and nonconsensual. When a school is on notice that a school
employee has sexually harassed a student, it is responsible for taking prompt and
effective steps reasonably calculated to end the sexual harassment, eliminate the hostile
environment, prevent its recurrence, and remedy its effects. Indeed, even if a school was
not on notice, the school is nonetheless responsible for remedying any effects of the
sexual harassment on the student, as well as for ending the sexual harassment and
preventing its recurrence, when the employee engaged in the sexual activity in the
context of the employee’s provision of aid, benefits, or services to students (e.g.,
teaching, counseling, supervising, advising, or transporting students).
A school should take steps to protect its students from sexual abuse by its employees. It is
therefore imperative for a school to develop policies prohibiting inappropriate conduct by
school personnel and procedures for identifying and responding to such conduct. For
example, this could include implementing codes of conduct, which might address what is
commonly known as grooming – a desensitization strategy common in adult educator
sexual misconduct. Such policies and procedures can ensure that students, parents, and
Page 4 – Questions and Answers on Title IX and Sexual Violence

school personnel have clear guidelines on what are appropriate and inappropriate
interactions between adults and students in a school setting or in school-sponsored
activities. Additionally, a school should provide training for administrators, teachers, staff,
parents, and age-appropriate classroom information for students to ensure that everyone
understands what types of conduct are prohibited and knows how to respond when
problems arise.11
B. Students Protected by Title IX
B-1. Does Title IX protect all students from sexual violence?
Answer: Yes. Title IX protects all students at recipient institutions from sex discrimination,
including sexual violence. Any student can experience sexual violence: from elementary to
professional school students; male and female students; straight, gay, lesbian, bisexual
and transgender students; part-time and full-time students; students with and without
disabilities; and students of different races and national origins.
B-2. How should a school handle sexual violence complaints in which the complainant and
the alleged perpetrator are members of the same sex?
Answer: A school’s obligation to respond appropriately to sexual violence complaints is
the same irrespective of the sex or sexes of the parties involved. Title IX protects all
students from sexual violence, regardless of the sex of the alleged perpetrator or
complainant, including when they are members of the same sex. A school must
investigate and resolve allegations of sexual violence involving parties of the same sex
using the same procedures and standards that it uses in all complaints involving sexual
violence.
Title IX’s sex discrimination prohibition extends to claims of discrimination based on
gender identity or failure to conform to stereotypical notions of masculinity or femininity
and OCR accepts such complaints for investigation. Similarly, the actual or perceived
sexual orientation or gender identity of the parties does not change a school’s obligations.
Indeed, lesbian, gay, bisexual, and transgender (LGBT) youth report high rates of sexual
harassment and sexual violence. A school should investigate and resolve allegations of
sexual violence regarding LGBT students using the same procedures and standards that it

11

For additional informational on training please see the Department of Education’s Resource and Emergency
Management for Schools Technical Assistance Center – Adult Sexual Misconduct in Schools: Prevention and
Management Training, available at http://rems.ed.gov/Docs/ASM_Marketing_Flyer.pdf.

Page 5 – Questions and Answers on Title IX and Sexual Violence

uses in all complaints involving sexual violence. The fact that incidents of sexual violence
may be accompanied by anti-gay comments or be partly based on a student’s actual or
perceived sexual orientation does not relieve a school of its obligation under Title IX to
investigate and remedy those instances of sexual violence.
If a school’s policies related to sexual violence include examples of particular types of
conduct that violate the school’s prohibition on sexual violence, the school should
consider including examples of same-sex conduct. In addition, a school should ensure that
staff are capable of providing culturally competent counseling to all complainants. Thus, a
school should ensure that its counselors and other staff who are responsible for receiving
and responding to complaints of sexual violence, including investigators and hearing
board members, receive appropriate training about working with LGBT and gendernonconforming students and same-sex sexual violence. See questions J-1 to J-4 for
additional information regarding training.
Gay-straight alliances and similar student-initiated groups can also play an important role
in creating safer school environments for LGBT students. On June 14, 2011, the
Department issued guidance about the rights of student-initiated groups in public
secondary schools under the Equal Access Act. That guidance is available at
http://www2.ed.gov/policy/elsec/guid/secletter/110607.html.
B-3. What issues may arise with respect to students with disabilities who experience sexual
violence?
Answer: When students with disabilities experience sexual violence, federal civil rights
laws other than Title IX may also be relevant to a school’s responsibility to investigate and
address such incidents.12 Certain students require additional assistance and support. For
example, students with intellectual disabilities may need additional help in learning about
sexual violence, including a school’s sexual violence education and prevention programs,
what constitutes sexual violence and how students can report incidents of sexual

12

OCR enforces two civil rights laws that prohibit disability discrimination. Section 504 of the Rehabilitation Act of
1973 (Section 504) prohibits disability discrimination by public or private entities that receive federal financial
assistance, and Title II of the American with Disabilities Act of 1990 (Title II) prohibits disability discrimination by all
state and local public entities, regardless of whether they receive federal funding. See 29 U.S.C. § 794 and 34 C.F.R.
part 104; 42 U.S.C. § 12131 et seq. and 28 C.F.R. part 35. OCR and the U.S. Department of Justice (DOJ) share the
responsibility of enforcing Title II in the educational context. The Department of Education’s Office of Special
Education Programs in the Office of Special Education and Rehabilitative Services administers Part B of the
Individuals with Disabilities Education Act (IDEA). 20 U.S.C. 1400 et seq. and 34 C.F.R. part 300. IDEA provides
financial assistance to states, and through them to local educational agencies, to assist in providing special
education and related services to eligible children with disabilities ages three through twenty-one, inclusive.

Page 6 – Questions and Answers on Title IX and Sexual Violence

violence. In addition, students with disabilities who experience sexual violence may
require additional services and supports, including psychological services and counseling
services. Postsecondary students who need these additional services and supports can
seek assistance from the institution’s disability resource office.
A student who has not been previously determined to have a disability may, as a result of
experiencing sexual violence, develop a mental health-related disability that could cause
the student to need special education and related services. At the elementary and
secondary education level, this may trigger a school’s child find obligations under IDEA
and the evaluation and placement requirements under Section 504, which together
require a school to evaluate a student suspected of having a disability to determine if he
or she has a disability that requires special education or related aids and services.13
A school must also ensure that any school reporting forms, information, or training about
sexual violence be provided in a manner that is accessible to students and employees with
disabilities, for example, by providing electronically-accessible versions of paper forms to
individuals with print disabilities, or by providing a sign language interpreter to a deaf
individual attending a training. See question J-4 for more detailed information on student
training.
B-4. What issues arise with respect to international students and undocumented students
who experience sexual violence?
Answer: Title IX protects all students at recipient institutions in the United States
regardless of national origin, immigration status, or citizenship status.14 A school should
ensure that all students regardless of their immigration status, including undocumented
students and international students, are aware of their rights under Title IX. A school must
also ensure that any school reporting forms, information, or training about sexual violence
be provided in a manner accessible to students who are English language learners. OCR
recommends that a school coordinate with its international office and its undocumented
student program coordinator, if applicable, to help communicate information about Title
IX in languages that are accessible to these groups of students. OCR also encourages
schools to provide foreign national complainants with information about the U
nonimmigrant status and the T nonimmigrant status. The U nonimmigrant status is set

13

See 34 C.F.R. §§ 300.8; 300.111; 300.201; 300.300-300.311 (IDEA); 34 C.F.R. §§ 104.3(j) and 104.35 (Section 504).
Schools must comply with applicable consent requirements with respect to evaluations. See 34 C.F.R. § 300.300.
14
OCR enforces Title VI of the Civil Rights Act of 1964, which prohibits discrimination by recipients of federal
financial assistance on the basis of race, color, or national origin. 42 U.S.C. § 2000d.

Page 7 – Questions and Answers on Title IX and Sexual Violence

aside for victims of certain crimes who have suffered substantial mental or physical abuse
as a result of the crime and are helpful to law enforcement agency in the investigation or
prosecution of the qualifying criminal activity.15 The T nonimmigrant status is available
for victims of severe forms of human trafficking who generally comply with a law
enforcement agency in the investigation or prosecution of the human trafficking and who
would suffer extreme hardship involving unusual and severe harm if they were removed
from the United States.16
A school should be mindful that unique issues may arise when a foreign student on a
student visa experiences sexual violence. For example, certain student visas require the
student to maintain a full-time course load (generally at least 12 academic credit hours
per term), but a student may need to take a reduced course load while recovering from
the immediate effects of the sexual violence. OCR recommends that a school take steps to
ensure that international students on student visas understand that they must typically
seek prior approval of the designated school official (DSO) for student visas to drop below
a full-time course load. A school may also want to encourage its employees involved in
handling sexual violence complaints and counseling students who have experienced
sexual violence to approach the DSO on the student’s behalf if the student wishes to drop
below a full-time course load. OCR recommends that a school take steps to ensure that its
employees who work with international students, including the school’s DSO, are trained
on the school’s sexual violence policies and that employees involved in handling sexual
violence complaints and counseling students who have experienced sexual violence are
aware of the special issues that international students may encounter. See questions J-1
to J-4 for additional information regarding training.
A school should also be aware that threatening students with deportation or invoking a
student’s immigration status in an attempt to intimidate or deter a student from filing a
Title IX complaint would violate Title IX’s protections against retaliation. For more
information on retaliation see question K-1.

15

For more information on the U nonimmigrant status, see http://www.uscis.gov/humanitarian/victims-humantrafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/questions-answers-victims-criminalactivity-u-nonimmigrant-status.
16
For more information on the T nonimmigrant status, see http://www.uscis.gov/humanitarian/victims-humantrafficking-other-crimes/victims-human-trafficking-t-nonimmigrant-status.

Page 8 – Questions and Answers on Title IX and Sexual Violence

B-5. How should a school respond to sexual violence when the alleged perpetrator is not
affiliated with the school?
Answer: The appropriate response will differ depending on the level of control the school
has over the alleged perpetrator. For example, if an athlete or band member from a
visiting school sexually assaults a student at the home school, the home school may not
be able to discipline or take other direct action against the visiting athlete or band
member. However (and subject to the confidentiality provisions discussed in Section E), it
should conduct an inquiry into what occurred and should report the incident to the
visiting school and encourage the visiting school to take appropriate action to prevent
further sexual violence. The home school should also notify the student of any right to file
a complaint with the alleged perpetrator’s school or local law enforcement. The home
school may also decide not to invite the visiting school back to its campus.
Even though a school’s ability to take direct action against a particular perpetrator may be
limited, the school must still take steps to provide appropriate remedies for the
complainant and, where appropriate, the broader school population. This may include
providing support services for the complainant, and issuing new policy statements making
it clear that the school does not tolerate sexual violence and will respond to any reports
about such incidents. For additional information on interim measures see questions G-1 to
G-3.
C. Title IX Procedural Requirements
Overview
C-1. What procedures must a school have in place to prevent sexual violence and resolve
complaints?
Answer: The Title IX regulations outline three key procedural requirements. Each school
must:
(1) disseminate a notice of nondiscrimination (see question C-2);17
(2) designate at least one employee to coordinate its efforts to comply with and carry
out its responsibilities under Title IX (see questions C-3 to C-4);18 and

17
18

34 C.F.R. § 106.9.
Id. § 106.8(a).

Page 9 – Questions and Answers on Title IX and Sexual Violence

(3) adopt and publish grievance procedures providing for the prompt and equitable
resolution of student and employee sex discrimination complaints (see questions C-5 to
C-6).19
These requirements apply to all forms of sex discrimination and are particularly important
for preventing and effectively responding to sexual violence.
Procedural requirements under other federal laws may also apply to complaints of sexual
violence, including the requirements of the Clery Act.20 For additional information about
the procedural requirements in the Clery Act, please see
http://www2.ed.gov/admins/lead/safety/campus.html.
Notice of Nondiscrimination
C-2. What information must be included in a school’s notice of nondiscrimination?
Answer: The notice of nondiscrimination must state that the school does not discriminate
on the basis of sex in its education programs and activities, and that it is required by Title
IX not to discriminate in such a manner. The notice must state that questions regarding
Title IX may be referred to the school’s Title IX coordinator or to OCR. The school must
notify all of its students and employees of the name or title, office address, telephone
number, and email address of the school’s designated Title IX coordinator.21
Title IX Coordinator
C-3. What are a Title IX coordinator’s responsibilities?
Answer: A Title IX coordinator’s core responsibilities include overseeing the school’s
response to Title IX reports and complaints and identifying and addressing any patterns or
systemic problems revealed by such reports and complaints. This means that the Title IX
coordinator must have knowledge of the requirements of Title IX, of the school’s own
policies and procedures on sex discrimination, and of all complaints raising Title IX issues
throughout the school. To accomplish this, subject to the exemption for school counseling
employees discussed in question E-3, the Title IX coordinator must be informed of all

19

Id. § 106.8(b).
All postsecondary institutions participating in the Higher Education Act’s Title IV student financial assistance
programs must comply with the Clery Act.
21
For more information on notices of nondiscrimination, please see OCR’s Notice of Nondiscrimination (August
2010), available at http://www.ed.gov/ocr/docs/nondisc.pdf.
20

Page 10 – Questions and Answers on Title IX and Sexual Violence

reports and complaints raising Title IX issues, even if the report or complaint was initially
filed with another individual or office or if the investigation will be conducted by another
individual or office. The school should ensure that the Title IX coordinator is given the
training, authority, and visibility necessary to fulfill these responsibilities.
Because the Title IX coordinator must have knowledge of all Title IX reports and
complaints at the school, this individual (when properly trained) is generally in the best
position to evaluate a student’s request for confidentiality in the context of the school’s
responsibility to provide a safe and nondiscriminatory environment for all students. A
school may determine, however, that another individual should perform this role. For
additional information on confidentiality requests, see questions E-1 to E-4. If a school
relies in part on its disciplinary procedures to meet its Title IX obligations, the Title IX
coordinator should review the disciplinary procedures to ensure that the procedures
comply with the prompt and equitable requirements of Title IX as discussed in question
C-5.
In addition to these core responsibilities, a school may decide to give its Title IX
coordinator additional responsibilities, such as: providing training to students, faculty, and
staff on Title IX issues; conducting Title IX investigations, including investigating facts
relevant to a complaint, and determining appropriate sanctions against the perpetrator
and remedies for the complainant; determining appropriate interim measures for a
complainant upon learning of a report or complaint of sexual violence; and ensuring that
appropriate policies and procedures are in place for working with local law enforcement
and coordinating services with local victim advocacy organizations and service providers,
including rape crisis centers. A school must ensure that its Title IX coordinator is
appropriately trained in all areas over which he or she has responsibility. The Title IX
coordinator or designee should also be available to meet with students as needed.
If a school designates more than one Title IX coordinator, the school’s notice of
nondiscrimination and Title IX grievance procedures should describe each coordinator’s
responsibilities, and one coordinator should be designated as having ultimate oversight
responsibility.
C-4. Are there any employees who should not serve as the Title IX coordinator?
Answer: Title IX does not categorically preclude particular employees from serving as
Title IX coordinators. However, Title IX coordinators should not have other job
responsibilities that may create a conflict of interest. Because some complaints may raise
issues as to whether or how well the school has met its Title IX obligations, designating
Page 11 – Questions and Answers on Title IX and Sexual Violence

the same employee to serve both as the Title IX coordinator and the general counsel
(which could include representing the school in legal claims alleging Title IX violations)
poses a serious risk of a conflict of interest. Other employees whose job responsibilities
may conflict with a Title IX coordinator’s responsibilities include Directors of Athletics,
Deans of Students, and any employee who serves on the judicial/hearing board or to
whom an appeal might be made. Designating a full-time Title IX coordinator will minimize
the risk of a conflict of interest.
Grievance Procedures
C-5. Under Title IX, what elements should be included in a school’s procedures for
responding to complaints of sexual violence?
Answer: Title IX requires that a school adopt and publish grievance procedures providing
for prompt and equitable resolution of student and employee complaints of sex
discrimination, including sexual violence. In evaluating whether a school’s grievance
procedures satisfy this requirement, OCR will review all aspects of a school’s policies and
practices, including the following elements that are critical to achieve compliance with
Title IX:
(1)

notice to students, parents of elementary and secondary students, and employees
of the grievance procedures, including where complaints may be filed;

(2)

application of the grievance procedures to complaints filed by students or on their
behalf alleging sexual violence carried out by employees, other students, or third
parties;

(3)

provisions for adequate, reliable, and impartial investigation of complaints,
including the opportunity for both the complainant and alleged perpetrator to
present witnesses and evidence;

(4)

designated and reasonably prompt time frames for the major stages of the
complaint process (see question F-8);

(5)

written notice to the complainant and alleged perpetrator of the outcome of the
complaint (see question H-3); and

(6)

assurance that the school will take steps to prevent recurrence of any sexual
violence and remedy discriminatory effects on the complainant and others, if
appropriate.

Page 12 – Questions and Answers on Title IX and Sexual Violence

To ensure that students and employees have a clear understanding of what constitutes
sexual violence, the potential consequences for such conduct, and how the school
processes complaints, a school’s Title IX grievance procedures should also explicitly
include the following in writing, some of which themselves are mandatory obligations
under Title IX:
(1)

a statement of the school’s jurisdiction over Title IX complaints;

(2)

adequate definitions of sexual harassment (which includes sexual violence) and an
explanation as to when such conduct creates a hostile environment;

(3)

reporting policies and protocols, including provisions for confidential reporting;

(4)

identification of the employee or employees responsible for evaluating requests
for confidentiality;

(5)

notice that Title IX prohibits retaliation;

(6)

notice of a student’s right to file a criminal complaint and a Title IX complaint
simultaneously;

(7)

notice of available interim measures that may be taken to protect the student in
the educational setting;

(8)

the evidentiary standard that must be used (preponderance of the evidence) (i.e.,
more likely than not that sexual violence occurred) in resolving a complaint;

(9)

notice of potential remedies for students;

(10) notice of potential sanctions against perpetrators; and
(11) sources of counseling, advocacy, and support.
For more information on interim measures, see questions G-1 to G-3.
The rights established under Title IX must be interpreted consistently with any federally
guaranteed due process rights. Procedures that ensure the Title IX rights of the
complainant, while at the same time according any federally guaranteed due process to
both parties involved, will lead to sound and supportable decisions. Of course, a school
should ensure that steps to accord any due process rights do not restrict or unnecessarily
delay the protections provided by Title IX to the complainant.

Page 13 – Questions and Answers on Title IX and Sexual Violence

A school’s procedures and practices will vary in detail, specificity, and components,
reflecting differences in the age of its students, school size and administrative structure,
state or local legal requirements (e.g., mandatory reporting requirements for schools
working with minors), and what it has learned from past experiences.
C-6. Is a school required to use separate grievance procedures for sexual violence
complaints?
Answer: No. Under Title IX, a school may use student disciplinary procedures, general
Title IX grievance procedures, sexual harassment procedures, or separate procedures to
resolve sexual violence complaints. However, any procedures used for sexual violence
complaints, including disciplinary procedures, must meet the Title IX requirement of
affording a complainant a prompt and equitable resolution (as discussed in question C-5),
including applying the preponderance of the evidence standard of review. As discussed in
question C-3, the Title IX coordinator should review any process used to resolve
complaints of sexual violence to ensure it complies with requirements for prompt and
equitable resolution of these complaints. When using disciplinary procedures, which are
often focused on the alleged perpetrator and can take considerable time, a school should
be mindful of its obligation to provide interim measures to protect the complainant in the
educational setting. For more information on timeframes and interim measures, see
questions F-8 and G-1 to G-3.
D. Responsible Employees and Reporting22
D-1. Which school employees are obligated to report incidents of possible sexual violence to
school officials?
Answer: Under Title IX, whether an individual is obligated to report incidents of alleged
sexual violence generally depends on whether the individual is a responsible employee of
the school. A responsible employee must report incidents of sexual violence to the Title IX
coordinator or other appropriate school designee, subject to the exemption for school
counseling employees discussed in question E-3. This is because, as discussed in question
A-4, a school is obligated to address sexual violence about which a responsible employee
knew or should have known. As explained in question C-3, the Title IX coordinator must be
informed of all reports and complaints raising Title IX issues, even if the report or

22

This document addresses only Title IX’s reporting requirements. It does not address requirements under the
Clery Act or other federal, state, or local laws, or an individual school’s code of conduct.

Page 14 – Questions and Answers on Title IX and Sexual Violence

complaint was initially filed with another individual or office, subject to the exemption for
school counseling employees discussed in question E-3.
D-2. Who is a “responsible employee”?
Answer: According to OCR’s 2001 Guidance, a responsible employee includes any
employee: who has the authority to take action to redress sexual violence; who has been
given the duty of reporting incidents of sexual violence or any other misconduct by
students to the Title IX coordinator or other appropriate school designee; or whom a
student could reasonably believe has this authority or duty.23
A school must make clear to all of its employees and students which staff members are
responsible employees so that students can make informed decisions about whether to
disclose information to those employees. A school must also inform all employees of their
own reporting responsibilities and the importance of informing complainants of: the
reporting obligations of responsible employees; complainants’ option to request
confidentiality and available confidential advocacy, counseling, or other support services;
and complainants’ right to file a Title IX complaint with the school and to report a crime to
campus or local law enforcement.
Whether an employee is a responsible employee will vary depending on factors such as
the age and education level of the student, the type of position held by the employee, and
consideration of both formal and informal school practices and procedures. For example,
while it may be reasonable for an elementary school student to believe that a custodial
staff member or cafeteria worker has the authority or responsibility to address student
misconduct, it is less reasonable for a college student to believe that a custodial staff
member or dining hall employee has this same authority.
As noted in response to question A-4, when a responsible employee knows or reasonably
should know of possible sexual violence, OCR deems a school to have notice of the sexual
violence. The school must take immediate and appropriate steps to investigate or
otherwise determine what occurred (subject to the confidentiality provisions discussed in
Section E), and, if the school determines that sexual violence created a hostile
environment, the school must then take appropriate steps to address the situation. The

23

The Supreme Court held that a school will only be liable for money damages in a private lawsuit where there is
actual notice to a school official with the authority to address the alleged discrimination and take corrective action.
Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 290 (1998), and Davis, 524 U.S. at 642. The concept of a
“responsible employee” under OCR’s guidance for administrative enforcement of Title IX is broader.

Page 15 – Questions and Answers on Title IX and Sexual Violence

school has this obligation regardless of whether the student, student’s parent, or a third
party files a formal complaint. For additional information on a school’s responsibilities to
address student-on-student sexual violence, see question A-5. For additional information
on training for school employees, see questions J-1 to J-3.
D-3. What information is a responsible employee obligated to report about an incident of
possible student-on-student sexual violence?
Answer: Subject to the exemption for school counseling employees discussed in question
E-3, a responsible employee must report to the school’s Title IX coordinator, or other
appropriate school designee, all relevant details about the alleged sexual violence that the
student or another person has shared and that the school will need to determine what
occurred and to resolve the situation. This includes the names of the alleged perpetrator
(if known), the student who experienced the alleged sexual violence, other students
involved in the alleged sexual violence, as well as relevant facts, including the date, time,
and location. A school must make clear to its responsible employees to whom they should
report an incident of alleged sexual violence.
To ensure compliance with these reporting obligations, it is important for a school to train
its responsible employees on Title IX and the school’s sexual violence policies and
procedures. For more information on appropriate training for school employees, see
question J-1 to J-3.
D-4. What should a responsible employee tell a student who discloses an incident of sexual
violence?
Answer: Before a student reveals information that he or she may wish to keep
confidential, a responsible employee should make every effort to ensure that the student
understands: (i) the employee’s obligation to report the names of the alleged perpetrator
and student involved in the alleged sexual violence, as well as relevant facts regarding the
alleged incident (including the date, time, and location), to the Title IX coordinator or
other appropriate school officials, (ii) the student’s option to request that the school
maintain his or her confidentiality, which the school (e.g., Title IX coordinator) will
consider, and (iii) the student’s ability to share the information confidentially with
counseling, advocacy, health, mental health, or sexual-assault-related services (e.g.,
sexual assault resource centers, campus health centers, pastoral counselors, and campus
mental health centers). As discussed in questions E-1 and E-2, if the student requests
confidentiality, the Title IX coordinator or other appropriate school designee responsible
for evaluating requests for confidentiality should make every effort to respect this request
Page 16 – Questions and Answers on Title IX and Sexual Violence

and should evaluate the request in the context of the school’s responsibility to provide a
safe and nondiscriminatory environment for all students.
D-5. If a student informs a resident assistant/advisor (RA) that he or she was subjected to
sexual violence by a fellow student, is the RA obligated under Title IX to report the
incident to school officials?
Answer: As discussed in questions D-1 and D-2, for Title IX purposes, whether an
individual is obligated under Title IX to report alleged sexual violence to the school’s Title
IX coordinator or other appropriate school designee generally depends on whether the
individual is a responsible employee.
The duties and responsibilities of RAs vary among schools, and, therefore, a school should
consider its own policies and procedures to determine whether its RAs are responsible
employees who must report incidents of sexual violence to the Title IX coordinator or
other appropriate school designee.24 When making this determination, a school should
consider if its RAs have the general authority to take action to redress misconduct or the
duty to report misconduct to appropriate school officials, as well as whether students
could reasonably believe that RAs have this authority or duty. A school should also
consider whether it has determined and clearly informed students that RAs are generally
available for confidential discussions and do not have the authority or responsibility to
take action to redress any misconduct or to report any misconduct to the Title IX
coordinator or other appropriate school officials. A school should pay particular attention
to its RAs’ obligations to report other student violations of school policy (e.g., drug and
alcohol violations or physical assault). If an RA is required to report other misconduct that
violates school policy, then the RA would be considered a responsible employee obligated
to report incidents of sexual violence that violate school policy.
If an RA is a responsible employee, the RA should make every effort to ensure that before
the student reveals information that he or she may wish to keep confidential, the student
understands the RA’s reporting obligation and the student’s option to request that the
school maintain confidentiality. It is therefore important that schools widely disseminate
policies and provide regular training clearly identifying the places where students can seek
confidential support services so that students are aware of this information. The RA

24

Postsecondary institutions should be aware that, regardless of whether an RA is a responsible employee under
Title IX, RAs are considered “campus security authorities” under the Clery Act. A school’s responsibilities in regard
to crimes reported to campus security authorities are discussed in the Department’s regulations on the Clery Act at
34 C.F.R. § 668.46.

Page 17 – Questions and Answers on Title IX and Sexual Violence

should also explain to the student (again, before the student reveals information that he
or she may wish to keep confidential) that, although the RA must report the names of the
alleged perpetrator (if known), the student who experienced the alleged sexual violence,
other students involved in the alleged sexual violence, as well as relevant facts, including
the date, time, and location to the Title IX coordinator or other appropriate school
designee, the school will protect the student’s confidentiality to the greatest extent
possible. Prior to providing information about the incident to the Title IX coordinator or
other appropriate school designee, the RA should consult with the student about how to
protect his or her safety and the details of what will be shared with the Title IX
coordinator. The RA should explain to the student that reporting this information to the
Title IX coordinator or other appropriate school designee does not necessarily mean that a
formal complaint or investigation under the school’s Title IX grievance procedure must be
initiated if the student requests confidentiality. As discussed in questions E-1 and E-2, if
the student requests confidentiality, the Title IX coordinator or other appropriate school
designee responsible for evaluating requests for confidentiality should make every effort
to respect this request and should evaluate the request in the context of the school’s
responsibility to provide a safe and nondiscriminatory environment for all students.
Regardless of whether a reporting obligation exists, all RAs should inform students of their
right to file a Title IX complaint with the school and report a crime to campus or local law
enforcement. If a student discloses sexual violence to an RA who is a responsible
employee, the school will be deemed to have notice of the sexual violence even if the
student does not file a Title IX complaint. Additionally, all RAs should provide students
with information regarding on-campus resources, including victim advocacy, housing
assistance, academic support, counseling, disability services, health and mental health
services, and legal assistance. RAs should also be familiar with local rape crisis centers or
other off-campus resources and provide this information to students.
E. Confidentiality and a School’s Obligation to Respond to Sexual Violence
E-1. How should a school respond to a student’s request that his or her name not be
disclosed to the alleged perpetrator or that no investigation or disciplinary action be
pursued to address the alleged sexual violence?
Answer: Students, or parents of minor students, reporting incidents of sexual violence
sometimes ask that the students’ names not be disclosed to the alleged perpetrators or
that no investigation or disciplinary action be pursued to address the alleged sexual
violence. OCR strongly supports a student’s interest in confidentiality in cases involving
sexual violence. There are situations in which a school must override a student’s request
Page 18 – Questions and Answers on Title IX and Sexual Violence

for confidentiality in order to meet its Title IX obligations; however, these instances will be
limited and the information should only be shared with individuals who are responsible
for handling the school’s response to incidents of sexual violence. Given the sensitive
nature of reports of sexual violence, a school should ensure that the information is
maintained in a secure manner. A school should be aware that disregarding requests for
confidentiality can have a chilling effect and discourage other students from reporting
sexual violence. In the case of minors, state mandatory reporting laws may require
disclosure, but can generally be followed without disclosing information to school
personnel who are not responsible for handling the school’s response to incidents of
sexual violence.25
Even if a student does not specifically ask for confidentiality, to the extent possible, a
school should only disclose information regarding alleged incidents of sexual violence to
individuals who are responsible for handling the school’s response. To improve trust in
the process for investigating sexual violence complaints, a school should notify students of
the information that will be disclosed, to whom it will be disclosed, and why. Regardless
of whether a student complainant requests confidentiality, a school must take steps to
protect the complainant as necessary, including taking interim measures before the final
outcome of an investigation. For additional information on interim measures see
questions G-1 to G-3.
For Title IX purposes, if a student requests that his or her name not be revealed to the
alleged perpetrator or asks that the school not investigate or seek action against the
alleged perpetrator, the school should inform the student that honoring the request may
limit its ability to respond fully to the incident, including pursuing disciplinary action
against the alleged perpetrator. The school should also explain that Title IX includes
protections against retaliation, and that school officials will not only take steps to prevent
retaliation but also take strong responsive action if it occurs. This includes retaliatory
actions taken by the school and school officials. When a school knows or reasonably
should know of possible retaliation by other students or third parties, including threats,
intimidation, coercion, or discrimination (including harassment), it must take immediate

25

The school should be aware of the alleged student perpetrator’s right under the Family Educational Rights and
Privacy Act (“FERPA”) torequest to inspect and review information about the allegations if the information directly
relates to the alleged student perpetrator and the information is maintained by the school as an education record.
In such a case, the school must either redact the complainant’s name and all identifying information before
allowing the alleged perpetrator to inspect and review the sections of the complaint that relate to him or her, or
must inform the alleged perpetrator of the specific information in the complaint that are about the alleged
perpetrator. See 34 C.F.R. § 99.12(a) The school should also make complainants aware of this right and explain
how it might affect the school’s ability to maintain complete confidentiality.

Page 19 – Questions and Answers on Title IX and Sexual Violence

and appropriate steps to investigate or otherwise determine what occurred. Title IX
requires the school to protect the complainant and ensure his or her safety as necessary.
See question K-1 regarding retaliation.
If the student still requests that his or her name not be disclosed to the alleged
perpetrator or that the school not investigate or seek action against the alleged
perpetrator, the school will need to determine whether or not it can honor such a request
while still providing a safe and nondiscriminatory environment for all students, including
the student who reported the sexual violence. As discussed in question C-3, the Title IX
coordinator is generally in the best position to evaluate confidentiality requests. Because
schools vary widely in size and administrative structure, OCR recognizes that a school may
reasonably determine that an employee other than the Title IX coordinator, such as a
sexual assault response coordinator, dean, or other school official, is better suited to
evaluate such requests. Addressing the needs of a student reporting sexual violence while
determining an appropriate institutional response requires expertise and attention, and a
school should ensure that it assigns these responsibilities to employees with the capability
and training to fulfill them. For example, if a school has a sexual assault response
coordinator, that person should be consulted in evaluating requests for confidentiality.
The school should identify in its Title IX policies and procedures the employee or
employees responsible for making such determinations.
If the school determines that it can respect the student’s request not to disclose his or her
identity to the alleged perpetrator, it should take all reasonable steps to respond to the
complaint consistent with the request. Although a student’s request to have his or her
name withheld may limit the school’s ability to respond fully to an individual allegation of
sexual violence, other means may be available to address the sexual violence. There are
steps a school can take to limit the effects of the alleged sexual violence and prevent its
recurrence without initiating formal action against the alleged perpetrator or revealing
the identity of the student complainant. Examples include providing increased monitoring,
supervision, or security at locations or activities where the misconduct occurred;
providing training and education materials for students and employees; changing and
publicizing the school’s policies on sexual violence; and conducting climate surveys
regarding sexual violence. In instances affecting many students, an alleged perpetrator
can be put on notice of allegations of harassing behavior and be counseled appropriately
without revealing, even indirectly, the identity of the student complainant. A school must
also take immediate action as necessary to protect the student while keeping the identity
of the student confidential. These actions may include providing support services to the
student and changing living arrangements or course schedules, assignments, or tests.
Page 20 – Questions and Answers on Title IX and Sexual Violence

E-2. What factors should a school consider in weighing a student’s request for
confidentiality?
Answer: When weighing a student’s request for confidentiality that could preclude a
meaningful investigation or potential discipline of the alleged perpetrator, a school should
consider a range of factors.
These factors include circumstances that suggest there is an increased risk of the alleged
perpetrator committing additional acts of sexual violence or other violence (e.g., whether
there have been other sexual violence complaints about the same alleged perpetrator,
whether the alleged perpetrator has a history of arrests or records from a prior school
indicating a history of violence, whether the alleged perpetrator threatened further sexual
violence or other violence against the student or others, and whether the sexual violence
was committed by multiple perpetrators). These factors also include circumstances that
suggest there is an increased risk of future acts of sexual violence under similar
circumstances (e.g., whether the student’s report reveals a pattern of perpetration (e.g.,
via illicit use of drugs or alcohol) at a given location or by a particular group). Other factors
that should be considered in assessing a student’s request for confidentiality include
whether the sexual violence was perpetrated with a weapon; the age of the student
subjected to the sexual violence; and whether the school possesses other means to obtain
relevant evidence (e.g., security cameras or personnel, physical evidence).
A school should take requests for confidentiality seriously, while at the same time
considering its responsibility to provide a safe and nondiscriminatory environment for all
students, including the student who reported the sexual violence. For example, if the
school has credible information that the alleged perpetrator has committed one or more
prior rapes, the balance of factors would compel the school to investigate the allegation
of sexual violence, and if appropriate, pursue disciplinary action in a manner that may
require disclosure of the student’s identity to the alleged perpetrator. If the school
determines that it must disclose a student’s identity to an alleged perpetrator, it should
inform the student prior to making this disclosure. In these cases, it is also especially
important for schools to take whatever interim measures are necessary to protect the
student and ensure the safety of other students. If a school has a sexual assault response
coordinator, that person should be consulted in identifying safety risks and interim
measures that are necessary to protect the student. In the event the student requests
that the school inform the perpetrator that the student asked the school not to
investigate or seek discipline, the school should honor this request and inform the alleged
perpetrator that the school made the decision to go forward. For additional information
on interim measures see questions G-1 to G-3. Any school officials responsible for
Page 21 – Questions and Answers on Title IX and Sexual Violence

discussing safety and confidentiality with students should be trained on the effects of
trauma and the appropriate methods to communicate with students subjected to sexual
violence. See questions J-1 to J-3.
On the other hand, if, for example, the school has no credible information about prior
sexual violence committed by the alleged perpetrator and the alleged sexual violence was
not perpetrated with a weapon or accompanied by threats to repeat the sexual violence
against the complainant or others or part of a larger pattern at a given location or by a
particular group, the balance of factors would likely compel the school to respect the
student’s request for confidentiality. In this case the school should still take all reasonable
steps to respond to the complaint consistent with the student’s confidentiality request
and determine whether interim measures are appropriate or necessary. Schools should be
mindful that traumatic events such as sexual violence can result in delayed
decisionmaking by a student who has experienced sexual violence. Hence, a student who
initially requests confidentiality might later request that a full investigation be conducted.
E-3. What are the reporting responsibilities of school employees who provide or support the
provision of counseling, advocacy, health, mental health, or sexual assault-related
services to students who have experienced sexual violence?
Answer: OCR does not require campus mental-health counselors, pastoral counselors,
social workers, psychologists, health center employees, or any other person with a
professional license requiring confidentiality, or who is supervised by such a person, to
report, without the student’s consent, incidents of sexual violence to the school in a way
that identifies the student. Although these employees may have responsibilities that
would otherwise make them responsible employees for Title IX purposes, OCR recognizes
the importance of protecting the counselor-client relationship, which often requires
confidentiality to ensure that students will seek the help they need.
Professional counselors and pastoral counselors whose official responsibilities include
providing mental-health counseling to members of the school community are not
required by Title IX to report any information regarding an incident of alleged sexual
violence to the Title IX coordinator or other appropriate school designee.26

26

The exemption from reporting obligations for pastoral and professional counselors under Title IX is consistent
with the Clery Act. For additional information on reporting obligations under the Clery Act, see Office of
Postsecondary Education, Handbook for Campus Safety and Security Reporting (2011), available at
http://www2.ed.gov/admins/lead/safety/handbook.pdf. Similar to the Clery Act, for Title IX purposes, a pastoral
counselor is a person who is associated with a religious order or denomination, is recognized by that religious

Page 22 – Questions and Answers on Title IX and Sexual Violence

OCR recognizes that some people who provide assistance to students who experience
sexual violence are not professional or pastoral counselors. They include all individuals
who work or volunteer in on-campus sexual assault centers, victim advocacy offices,
women’s centers, or health centers (“non-professional counselors or advocates”),
including front desk staff and students. OCR wants students to feel free to seek their
assistance and therefore interprets Title IX to give schools the latitude not to require
these individuals to report incidents of sexual violence in a way that identifies the student
without the student’s consent.27 These non-professional counselors or advocates are
valuable sources of support for students, and OCR strongly encourages schools to
designate these individuals as confidential sources.
Pastoral and professional counselors and non-professional counselors or advocates should
be instructed to inform students of their right to file a Title IX complaint with the school
and a separate complaint with campus or local law enforcement. In addition to informing
students about campus resources for counseling, medical, and academic support, these
persons should also indicate that they are available to assist students in filing such
complaints. They should also explain that Title IX includes protections against retaliation,
and that school officials will not only take steps to prevent retaliation but also take strong
responsive action if it occurs. This includes retaliatory actions taken by the school and
school officials. When a school knows or reasonably should know of possible retaliation by
other students or third parties, including threats, intimidation, coercion, or discrimination
(including harassment), it must take immediate and appropriate steps to investigate or
otherwise determine what occurred. Title IX requires the school to protect the
complainant and ensure his or her safety as necessary.
In order to identify patterns or systemic problems related to sexual violence, a school
should collect aggregate data about sexual violence incidents from non-professional
counselors or advocates in their on-campus sexual assault centers, women’s centers, or

order or denomination as someone who provides confidential counseling, and is functioning within the scope of
that recognition as a pastoral counselor. A professional counselor is a person whose official responsibilities include
providing mental health counseling to members of the institution’s community and who is functioning within the
scope of his or her license or certification. This definition applies even to professional counselors who are not
employees of the school, but are under contract to provide counseling at the school. This includes individuals who
are not yet licensed or certified as a counselor, but are acting in that role under the supervision of an individual
who is licensed or certified. An example is a Ph.D. counselor-trainee acting under the supervision of a professional
counselor at the school.
27
Postsecondary institutions should be aware that an individual who is counseling students, but who does not
meet the Clery Act definition of a pastoral or professional counselor, is not exempt from being a campus security
authority if he or she otherwise has significant responsibility for student and campus activities. See fn. 24.

Page 23 – Questions and Answers on Title IX and Sexual Violence

health centers. Such individuals should report only general information about incidents of
sexual violence such as the nature, date, time, and general location of the incident and
should take care to avoid reporting personally identifiable information about a student.
Non-professional counselors and advocates should consult with students regarding what
information needs to be withheld to protect their identity.
E-4. Is a school required to investigate information regarding sexual violence incidents
shared by survivors during public awareness events, such as “Take Back the Night”?
Answer: No. OCR wants students to feel free to participate in preventive education
programs and access resources for survivors. Therefore, public awareness events such as
“Take Back the Night” or other forums at which students disclose experiences with sexual
violence are not considered notice to the school for the purpose of triggering an
individual investigation unless the survivor initiates a complaint. The school should
instead respond to these disclosures by reviewing sexual assault policies, creating
campus-wide educational programs, and conducting climate surveys to learn more about
the prevalence of sexual violence at the school. Although Title IX does not require the
school to investigate particular incidents discussed at such events, the school should
ensure that survivors are aware of any available resources, including counseling, health,
and mental health services. To ensure that the entire school community understands their
Title IX rights related to sexual violence, the school should also provide information at
these events on Title IX and how to file a Title IX complaint with the school, as well as
options for reporting an incident of sexual violence to campus or local law enforcement.
F. Investigations and Hearings
Overview
F-1. What elements should a school’s Title IX investigation include?
Answer: The specific steps in a school’s Title IX investigation will vary depending on the
nature of the allegation, the age of the student or students involved, the size and
administrative structure of the school, state or local legal requirements (including
mandatory reporting requirements for schools working with minors), and what it has
learned from past experiences.
For the purposes of this document the term “investigation” refers to the process the
school uses to resolve sexual violence complaints. This includes the fact-finding
investigation and any hearing and decision-making process the school uses to determine:
(1) whether or not the conduct occurred; and, (2) if the conduct occurred, what actions
Page 24 – Questions and Answers on Title IX and Sexual Violence

the school will take to end the sexual violence, eliminate the hostile environment, and
prevent its recurrence, which may include imposing sanctions on the perpetrator and
providing remedies for the complainant and broader student population.
In all cases, a school’s Title IX investigation must be adequate, reliable, impartial, and
prompt and include the opportunity for both parties to present witnesses and other
evidence. The investigation may include a hearing to determine whether the conduct
occurred, but Title IX does not necessarily require a hearing.28 Furthermore, neither Title
IX nor the DCL specifies who should conduct the investigation. It could be the Title IX
coordinator, provided there are no conflicts of interest, but it does not have to be. All
persons involved in conducting a school’s Title IX investigations must have training or
experience in handling complaints of sexual violence and in the school’s grievance
procedures. For additional information on training, see question J-3.
When investigating an incident of alleged sexual violence for Title IX purposes, to the
extent possible, a school should coordinate with any other ongoing school or criminal
investigations of the incident and establish appropriate fact-finding roles for each
investigator. A school should also consider whether information can be shared among the
investigators so that complainants are not unnecessarily required to give multiple
statements about a traumatic event. If the investigation includes forensic evidence, it may
be helpful for a school to consult with local or campus law enforcement or a forensic
expert to ensure that the evidence is correctly interpreted by school officials. For
additional information on working with campus or local law enforcement see question
F-3.
If a school uses its student disciplinary procedures to meet its Title IX obligation to resolve
complaints of sexual violence promptly and equitably, it should recognize that imposing
sanctions against the perpetrator, without additional remedies, likely will not be sufficient
to eliminate the hostile environment and prevent recurrence as required by Title IX. If a
school typically processes complaints of sexual violence through its disciplinary process
and that process, including any investigation and hearing, meets the Title IX requirements
discussed above and enables the school to end the sexual violence, eliminate the hostile
environment, and prevent its recurrence, then the school may use that process to satisfy
its Title IX obligations and does not need to conduct a separate Title IX investigation. As
discussed in question C-3, the Title IX coordinator should review the disciplinary process

28

This answer addresses only Title IX’s requirements for investigations. It does not address legal rights or
requirements under the U.S. Constitution, the Clery Act, or other federal, state, or local laws.

Page 25 – Questions and Answers on Title IX and Sexual Violence

to ensure that it: (1) complies with the prompt and equitable requirements of Title IX;
(2) allows for appropriate interim measures to be taken to protect the complainant during
the process; and (3) provides for remedies to the complainant and school community
where appropriate. For more information about interim measures, see questions G-1 to
G-3, and about remedies, see questions H-1 and H-2.
The investigation may include, but is not limited to, conducting interviews of the
complainant, the alleged perpetrator, and any witnesses; reviewing law enforcement
investigation documents, if applicable; reviewing student and personnel files; and
gathering and examining other relevant documents or evidence. While a school has
flexibility in how it structures the investigative process, for Title IX purposes, a school
must give the complainant any rights that it gives to the alleged perpetrator. A balanced
and fair process that provides the same opportunities to both parties will lead to sound
and supportable decisions.29 Specifically:




The school must use a preponderance-of-the-evidence (i.e., more likely than not)
standard in any Title IX proceedings, including any fact-finding and hearings.



If the school permits one party to have lawyers or other advisors at any stage of the
proceedings, it must do so equally for both parties. Any school-imposed restrictions
on the ability of lawyers or other advisors to speak or otherwise participate in the
proceedings must also apply equally.



If the school permits one party to submit third-party expert testimony, it must do so
equally for both parties.



If the school provides for an appeal, it must do so equally for both parties.



29

Throughout the investigation, the parties must have an equal opportunity to present
relevant witnesses and other evidence.

Both parties must be notified, in writing, of the outcome of both the complaint and
any appeal (see question H-3).

As explained in question C-5, the parties may have certain due process rights under the U.S. Constitution.

Page 26 – Questions and Answers on Title IX and Sexual Violence

Intersection with Criminal Investigations
F-2. What are the key differences between a school’s Title IX investigation into allegations of
sexual violence and a criminal investigation?
Answer: A criminal investigation is intended to determine whether an individual violated
criminal law; and, if at the conclusion of the investigation, the individual is tried and found
guilty, the individual may be imprisoned or subject to criminal penalties. The U.S.
Constitution affords criminal defendants who face the risk of incarceration numerous
protections, including, but not limited to, the right to counsel, the right to a speedy trial,
the right to a jury trial, the right against self-incrimination, and the right to confrontation.
In addition, government officials responsible for criminal investigations (including police
and prosecutors) normally have discretion as to which complaints from the public they
will investigate.
By contrast, a Title IX investigation will never result in incarceration of an individual and,
therefore, the same procedural protections and legal standards are not required. Further,
while a criminal investigation is initiated at the discretion of law enforcement authorities,
a Title IX investigation is not discretionary; a school has a duty under Title IX to resolve
complaints promptly and equitably and to provide a safe and nondiscriminatory
environment for all students, free from sexual harassment and sexual violence. Because
the standards for pursuing and completing criminal investigations are different from those
used for Title IX investigations, the termination of a criminal investigation without an
arrest or conviction does not affect the school’s Title IX obligations.
Of course, criminal investigations conducted by local or campus law enforcement may be
useful for fact gathering if the criminal investigation occurs within the recommended
timeframe for Title IX investigations; but, even if a criminal investigation is ongoing, a
school must still conduct its own Title IX investigation.
A school should notify complainants of the right to file a criminal complaint and should
not dissuade a complainant from doing so either during or after the school’s internal Title
IX investigation. Title IX does not require a school to report alleged incidents of sexual
violence to law enforcement, but a school may have reporting obligations under state,
local, or other federal laws.

Page 27 – Questions and Answers on Title IX and Sexual Violence

F-3. How should a school proceed when campus or local law enforcement agencies are
conducting a criminal investigation while the school is conducting a parallel Title IX
investigation?
Answer: A school should not wait for the conclusion of a criminal investigation or criminal
proceeding to begin its own Title IX investigation. Although a school may need to delay
temporarily the fact-finding portion of a Title IX investigation while the police are
gathering evidence, it is important for a school to understand that during this brief delay
in the Title IX investigation, it must take interim measures to protect the complainant in
the educational setting. The school should also continue to update the parties on the
status of the investigation and inform the parties when the school resumes its Title IX
investigation. For additional information on interim measures see questions G-1 to G-3.
If a school delays the fact-finding portion of a Title IX investigation, the school must
promptly resume and complete its fact-finding for the Title IX investigation once it learns
that the police department has completed its evidence gathering stage of the criminal
investigation. The school should not delay its investigation until the ultimate outcome of
the criminal investigation or the filing of any charges. OCR recommends that a school
work with its campus police, local law enforcement, and local prosecutor’s office to learn
when the evidence gathering stage of the criminal investigation is complete. A school may
also want to enter into a memorandum of understanding (MOU) or other agreement with
these agencies regarding the protocols and procedures for referring allegations of sexual
violence, sharing information, and conducting contemporaneous investigations. Any MOU
or other agreement must allow the school to meet its Title IX obligation to resolve
complaints promptly and equitably, and must comply with the Family Educational Rights
and Privacy Act (“FERPA”) and other applicable privacy laws.
The DCL states that in one instance a prosecutor’s office informed OCR that the police
department’s evidence gathering stage typically takes three to ten calendar days,
although the delay in the school’s investigation may be longer in certain instances. OCR
understands that this example may not be representative and that the law enforcement
agency’s process often takes more than ten days. OCR recognizes that the length of time
for evidence gathering by criminal investigators will vary depending on the specific
circumstances of each case.

Page 28 – Questions and Answers on Title IX and Sexual Violence

Off-Campus Conduct
F-4. Is a school required to process complaints of alleged sexual violence that occurred off
campus?
Answer: Yes. Under Title IX, a school must process all complaints of sexual violence,
regardless of where the conduct occurred, to determine whether the conduct occurred in
the context of an education program or activity or had continuing effects on campus or in
an off-campus education program or activity.
A school must determine whether the alleged off-campus sexual violence occurred in the
context of an education program or activity of the school; if so, the school must treat the
complaint in the same manner that it treats complaints regarding on-campus conduct. In
other words, if a school determines that the alleged misconduct took place in the context
of an education program or activity of the school, the fact that the alleged misconduct
took place off campus does not relieve the school of its obligation to investigate the
complaint as it would investigate a complaint of sexual violence that occurred on campus.
Whether the alleged misconduct occurred in this context may not always be apparent
from the complaint, so a school may need to gather additional information in order to
make such a determination. Off-campus education programs and activities are clearly
covered and include, but are not limited to: activities that take place at houses of
fraternities or sororities recognized by the school; school-sponsored field trips, including
athletic team travel; and events for school clubs that occur off campus (e.g., a debate
team trip to another school or to a weekend competition).
Even if the misconduct did not occur in the context of an education program or activity, a
school must consider the effects of the off-campus misconduct when evaluating whether
there is a hostile environment on campus or in an off-campus education program or
activity because students often experience the continuing effects of off-campus sexual
violence while at school or in an off-campus education program or activity. The school
cannot address the continuing effects of the off-campus sexual violence at school or in an
off-campus education program or activity unless it processes the complaint and gathers
appropriate additional information in accordance with its established procedures.
Once a school is on notice of off-campus sexual violence against a student, it must assess
whether there are any continuing effects on campus or in an off-campus education
program or activity that are creating or contributing to a hostile environment and, if so,
address that hostile environment in the same manner in which it would address a hostile
environment created by on-campus misconduct. The mere presence on campus or in an
Page 29 – Questions and Answers on Title IX and Sexual Violence

off-campus education program or activity of the alleged perpetrator of off-campus sexual
violence can have continuing effects that create a hostile environment. A school should
also take steps to protect a student who alleges off-campus sexual violence from further
harassment by the alleged perpetrator or his or her friends, and a school may have to take
steps to protect other students from possible assault by the alleged perpetrator. In other
words, the school should protect the school community in the same way it would had the
sexual violence occurred on campus. Even if there are no continuing effects of the offcampus sexual violence experienced by the student on campus or in an off-campus
education program or activity, the school still should handle these incidents as it would
handle other off-campus incidents of misconduct or violence and consistent with any
other applicable laws. For example, if a school, under its code of conduct, exercises
jurisdiction over physical altercations between students that occur off campus outside of
an education program or activity, it should also exercise jurisdiction over incidents of
student-on-student sexual violence that occur off campus outside of an education
program or activity.
Hearings30
F-5. Must a school allow or require the parties to be present during an entire hearing?
Answer: If a school uses a hearing process to determine responsibility for acts of sexual
violence, OCR does not require that the school allow a complainant to be present for the
entire hearing; it is up to each school to make this determination. But if the school allows
one party to be present for the entirety of a hearing, it must do so equally for both
parties. At the same time, when requested, a school should make arrangements so that
the complainant and the alleged perpetrator do not have to be present in the same room
at the same time. These two objectives may be achieved by using closed circuit television
or other means. Because a school has a Title IX obligation to investigate possible sexual
violence, if a hearing is part of the school’s Title IX investigation process, the school must
not require a complainant to be present at the hearing as a prerequisite to proceed with
the hearing.

30

As noted in question F-1, the investigation may include a hearing to determine whether the conduct occurred,
but Title IX does not necessarily require a hearing. Although Title IX does not dictate the membership of a hearing
board, OCR discourages schools from allowing students to serve on hearing boards in cases involving allegations of
sexual violence.

Page 30 – Questions and Answers on Title IX and Sexual Violence

F-6. May every witness at the hearing, including the parties, be cross-examined?
Answer: OCR does not require that a school allow cross-examination of witnesses,
including the parties, if they testify at the hearing. But if the school allows one party to
cross-examine witnesses, it must do so equally for both parties.
OCR strongly discourages a school from allowing the parties to personally question or
cross-examine each other during a hearing on alleged sexual violence. Allowing an alleged
perpetrator to question a complainant directly may be traumatic or intimidating, and may
perpetuate a hostile environment. A school may choose, instead, to allow the parties to
submit questions to a trained third party (e.g., the hearing panel) to ask the questions on
their behalf. OCR recommends that the third party screen the questions submitted by the
parties and only ask those it deems appropriate and relevant to the case.
F-7. May the complainant’s sexual history be introduced at hearings?
Answer: Questioning about the complainant’s sexual history with anyone other than the
alleged perpetrator should not be permitted. Further, a school should recognize that the
mere fact of a current or previous consensual dating or sexual relationship between the
two parties does not itself imply consent or preclude a finding of sexual violence. The
school should also ensure that hearings are conducted in a manner that does not inflict
additional trauma on the complainant.
Timeframes
F-8. What stages of the investigation are included in the 60-day timeframe referenced in the
DCL as the length for a typical investigation?
Answer: As noted in the DCL, the 60-calendar day timeframe for investigations is based
on OCR’s experience in typical cases. The 60-calendar day timeframe refers to the entire
investigation process, which includes conducting the fact-finding investigation, holding a
hearing or engaging in another decision-making process to determine whether the alleged
sexual violence occurred and created a hostile environment, and determining what
actions the school will take to eliminate the hostile environment and prevent its
recurrence, including imposing sanctions against the perpetrator and providing remedies
for the complainant and school community, as appropriate. Although this timeframe does
not include appeals, a school should be aware that an unduly long appeals process may
impact whether the school’s response was prompt and equitable as required by Title IX.

Page 31 – Questions and Answers on Title IX and Sexual Violence

OCR does not require a school to complete investigations within 60 days; rather OCR
evaluates on a case-by-case basis whether the resolution of sexual violence complaints is
prompt and equitable. Whether OCR considers an investigation to be prompt as required
by Title IX will vary depending on the complexity of the investigation and the severity and
extent of the alleged conduct. OCR recognizes that the investigation process may take
longer if there is a parallel criminal investigation or if it occurs partially during school
breaks. A school may need to stop an investigation during school breaks or between
school years, although a school should make every effort to try to conduct an
investigation during these breaks unless so doing would sacrifice witness availability or
otherwise compromise the process.
Because timeframes for investigations vary and a school may need to depart from the
timeframes designated in its grievance procedures, both parties should be given periodic
status updates throughout the process.
G. Interim Measures
G-1. Is a school required to take any interim measures before the completion of its
investigation?
Answer: Title IX requires a school to take steps to ensure equal access to its education
programs and activities and protect the complainant as necessary, including taking interim
measures before the final outcome of an investigation. The school should take these steps
promptly once it has notice of a sexual violence allegation and should provide the
complainant with periodic updates on the status of the investigation. The school should
notify the complainant of his or her options to avoid contact with the alleged perpetrator
and allow the complainant to change academic and extracurricular activities or his or her
living, transportation, dining, and working situation as appropriate. The school should also
ensure that the complainant is aware of his or her Title IX rights and any available
resources, such as victim advocacy, housing assistance, academic support, counseling,
disability services, health and mental health services, and legal assistance, and the right to
report a crime to campus or local law enforcement. If a school does not offer these
services on campus, it should enter into an MOU with a local victim services provider if
possible.
Even when a school has determined that it can respect a complainant’s request for
confidentiality and therefore may not be able to respond fully to an allegation of sexual
violence and initiate formal action against an alleged perpetrator, the school must take
immediate action to protect the complainant while keeping the identity of the
complainant confidential. These actions may include: providing support services to the
Page 32 – Questions and Answers on Title IX and Sexual Violence

complainant; changing living arrangements or course schedules, assignments, or tests;
and providing increased monitoring, supervision, or security at locations or activities
where the misconduct occurred.
G-2. How should a school determine what interim measures to take?
Answer: The specific interim measures implemented and the process for implementing
those measures will vary depending on the facts of each case. A school should consider a
number of factors in determining what interim measures to take, including, for example,
the specific need expressed by the complainant; the age of the students involved; the
severity or pervasiveness of the allegations; any continuing effects on the complainant;
whether the complainant and alleged perpetrator share the same residence hall, dining
hall, class, transportation, or job location; and whether other judicial measures have been
taken to protect the complainant (e.g., civil protection orders).
In general, when taking interim measures, schools should minimize the burden on the
complainant. For example, if the complainant and alleged perpetrator share the same
class or residence hall, the school should not, as a matter of course, remove the
complainant from the class or housing while allowing the alleged perpetrator to remain
without carefully considering the facts of the case.
G-3. If a school provides all students with access to counseling on a fee basis, does that
suffice for providing counseling as an interim measure?
Answer: No. Interim measures are determined by a school on a case-by-case basis. If a
school determines that it needs to offer counseling to the complainant as part of its Title
IX obligation to take steps to protect the complainant while the investigation is ongoing, it
must not require the complainant to pay for this service.

Page 33 – Questions and Answers on Title IX and Sexual Violence

H. Remedies and Notice of Outcome31
H-1. What remedies should a school consider in a case of student-on-student sexual
violence?
Answer: Effective remedial action may include disciplinary action against the perpetrator,
providing counseling for the perpetrator, remedies for the complainant and others, as
well as changes to the school’s overall services or policies. All services needed to remedy
the hostile environment should be offered to the complainant. These remedies are
separate from, and in addition to, any interim measure that may have been provided prior
to the conclusion of the school’s investigation. In any instance in which the complainant
did not take advantage of a specific service (e.g., counseling) when offered as an interim
measure, the complainant should still be offered, and is still entitled to, appropriate final
remedies that may include services the complainant declined as an interim measure. A
refusal at the interim stage does not mean the refused service or set of services should
not be offered as a remedy.
If a school uses its student disciplinary procedures to meet its Title IX obligation to resolve
complaints of sexual violence promptly and equitably, it should recognize that imposing
sanctions against the perpetrator, without more, likely will not be sufficient to satisfy its
Title IX obligation to eliminate the hostile environment, prevent its recurrence, and, as
appropriate, remedy its effects. Additional remedies for the complainant and the school
community may be necessary. If the school’s student disciplinary procedure does not
include a process for determining and implementing these remedies for the complainant
and school community, the school will need to use another process for this purpose.
Depending on the specific nature of the problem, remedies for the complainant may
include, but are not limited to:


Providing an effective escort to ensure that the complainant can move safely
between classes and activities;

31

As explained in question A-5, if a school delays responding to allegations of sexual violence or responds
inappropriately, the school’s own inaction may subject the student to be subjected to a hostile environment. In
this case, in addition to the remedies discussed in this section, the school will also be required to remedy the
effects of the sexual violence that could reasonably have been prevented had the school responded promptly and
appropriately.

Page 34 – Questions and Answers on Title IX and Sexual Violence



Ensuring the complainant and perpetrator do not share classes or extracurricular
activities;



Moving the perpetrator or complainant (if the complainant requests to be moved) to
a different residence hall or, in the case of an elementary or secondary school
student, to another school within the district;



Providing comprehensive, holistic victim services including medical, counseling and
academic support services, such as tutoring;



Arranging for the complainant to have extra time to complete or re-take a class or
withdraw from a class without an academic or financial penalty; and



Reviewing any disciplinary actions taken against the complainant to see if there is a
causal connection between the sexual violence and the misconduct that may have
resulted in the complainant being disciplined.32

Remedies for the broader student population may include, but are not limited to:


Designating an individual from the school’s counseling center who is specifically
trained in providing trauma-informed comprehensive services to victims of sexual
violence to be on call to assist students whenever needed;



Training or retraining school employees on the school’s responsibilities to address
allegations of sexual violence and how to conduct Title IX investigations;



Developing materials on sexual violence, which should be distributed to all students;



Conducting bystander intervention and sexual violence prevention programs with
students;



Issuing policy statements or taking other steps that clearly communicate that the
school does not tolerate sexual violence and will respond to any incidents and to any
student who reports such incidents;

32

For example, if the complainant was disciplined for skipping a class in which the perpetrator was enrolled, the
school should review the incident to determine if the complainant skipped class to avoid contact with the
perpetrator.

Page 35 – Questions and Answers on Title IX and Sexual Violence



Conducting, in conjunction with student leaders, a campus climate check to assess
the effectiveness of efforts to ensure that the school is free from sexual violence,
and using that information to inform future proactive steps that the school will take;



Targeted training for a group of students if, for example, the sexual violence created
a hostile environment in a residence hall, fraternity or sorority, or on an athletic
team; and



Developing a protocol for working with local law enforcement as discussed in
question F-3.

When a school is unable to conduct a full investigation into a particular incident (i.e.,
when it received a general report of sexual violence without any personally identifying
information), it should consider remedies for the broader student population in response.
H-2. If, after an investigation, a school finds the alleged perpetrator responsible and
determines that, as part of the remedies for the complainant, it must separate the
complainant and perpetrator, how should the school accomplish this if both students
share the same major and there are limited course options?
Answer: If there are limited sections of required courses offered at a school and both the
complainant and perpetrator are required to take those classes, the school may need to
make alternate arrangements in a manner that minimizes the burden on the complainant.
For example, the school may allow the complainant to take the regular sections of the
courses while arranging for the perpetrator to take the same courses online or through
independent study.
H-3. What information must be provided to the complainant in the notice of the outcome?
Answer: Title IX requires both parties to be notified, in writing, about the outcome of
both the complaint and any appeal. OCR recommends that a school provide written notice
of the outcome to the complainant and the alleged perpetrator concurrently.
For Title IX purposes, a school must inform the complainant as to whether or not it found
that the alleged conduct occurred, any individual remedies offered or provided to the
complainant or any sanctions imposed on the perpetrator that directly relate to the
complainant, and other steps the school has taken to eliminate the hostile environment, if
the school finds one to exist, and prevent recurrence. The perpetrator should not be
notified of the individual remedies offered or provided to the complainant.

Page 36 – Questions and Answers on Title IX and Sexual Violence

Sanctions that directly relate to the complainant (but that may also relate to eliminating
the hostile environment and preventing recurrence) include, but are not limited to,
requiring that the perpetrator stay away from the complainant until both parties
graduate, prohibiting the perpetrator from attending school for a period of time, or
transferring the perpetrator to another residence hall, other classes, or another school.
Additional steps the school has taken to eliminate the hostile environment may include
counseling and academic support services for the complainant and other affected
students. Additional steps the school has taken to prevent recurrence may include sexual
violence training for faculty and staff, revisions to the school’s policies on sexual violence,
and campus climate surveys. Further discussion of appropriate remedies is included in
question H-1.
In addition to the Title IX requirements described above, the Clery Act requires, and
FERPA permits, postsecondary institutions to inform the complainant of the institution’s
final determination and any disciplinary sanctions imposed on the perpetrator in sexual
violence cases (as opposed to all harassment and misconduct covered by Title IX) not just
those sanctions that directly relate to the complainant.33
I. Appeals
I-1. What are the requirements for an appeals process?
Answer: While Title IX does not require that a school provide an appeals process, OCR
does recommend that the school do so where procedural error or previously unavailable
relevant evidence could significantly impact the outcome of a case or where a sanction is
substantially disproportionate to the findings. If a school chooses to provide for an appeal
of the findings or remedy or both, it must do so equally for both parties. The specific
design of the appeals process is up to the school, as long as the entire grievance process,
including any appeals, provides prompt and equitable resolutions of sexual violence
complaints, and the school takes steps to protect the complainant in the educational
setting during the process. Any individual or body handling appeals should be trained in
the dynamics of and trauma associated with sexual violence.
If a school chooses to offer an appeals process it has flexibility to determine the type of
review it will apply to appeals, but the type of review the school applies must be the same
regardless of which party files the appeal.

33

20 U.S.C. § 1092(f) and 20 U.S.C. § 1232g(b)(6)(A).

Page 37 – Questions and Answers on Title IX and Sexual Violence

I-2. Must an appeal be available to a complainant who receives a favorable finding but does
not believe a sanction that directly relates to him or her was sufficient?
Answer: The appeals process must be equal for both parties. For example, if a school
allows a perpetrator to appeal a suspension on the grounds that it is too severe, the
school must also allow a complainant to appeal a suspension on the grounds that it was
not severe enough. See question H-3 for more information on what must be provided to
the complainant in the notice of the outcome.
J. Title IX Training, Education and Prevention34
J-1. What type of training on Title IX and sexual violence should a school provide to its
employees?
Answer: A school needs to ensure that responsible employees with the authority to
address sexual violence know how to respond appropriately to reports of sexual violence,
that other responsible employees know that they are obligated to report sexual violence
to appropriate school officials, and that all other employees understand how to respond
to reports of sexual violence. A school should ensure that professional counselors,
pastoral counselors, and non-professional counselors or advocates also understand the
extent to which they may keep a report confidential. A school should provide training to
all employees likely to witness or receive reports of sexual violence, including teachers,
professors, school law enforcement unit employees, school administrators, school
counselors, general counsels, athletic coaches, health personnel, and resident advisors.
Training for employees should include practical information about how to prevent and
identify sexual violence, including same-sex sexual violence; the behaviors that may lead
to and result in sexual violence; the attitudes of bystanders that may allow conduct to
continue; the potential for revictimization by responders and its effect on students;
appropriate methods for responding to a student who may have experienced sexual
violence, including the use of nonjudgmental language; the impact of trauma on victims;
and, as applicable, the person(s) to whom such misconduct must be reported. The training
should also explain responsible employees’ reporting obligation, including what should be
included in a report and any consequences for the failure to report and the procedure for
responding to students’ requests for confidentiality, as well as provide the contact

34

As explained earlier, although this document focuses on sexual violence, the legal principles apply to other forms
of sexual harassment. Schools should ensure that any training they provide on Title IX and sexual violence also
covers other forms of sexual harassment. Postsecondary institutions should also be aware of training requirements
imposed under the Clery Act.

Page 38 – Questions and Answers on Title IX and Sexual Violence

information for the school’s Title IX coordinator. A school also should train responsible
employees to inform students of: the reporting obligations of responsible employees;
students’ option to request confidentiality and available confidential advocacy,
counseling, or other support services; and their right to file a Title IX complaint with the
school and to report a crime to campus or local law enforcement. For additional
information on the reporting obligations of responsible employees and others see
questions D-1 to D-5.
There is no minimum number of hours required for Title IX and sexual violence training at
every school, but this training should be provided on a regular basis. Each school should
determine based on its particular circumstances how such training should be conducted,
who has the relevant expertise required to conduct the training, and who should receive
the training to ensure that the training adequately prepares employees, particularly
responsible employees, to fulfill their duties under Title IX. A school should also have
methods for verifying that the training was effective.
J-2. How should a school train responsible employees to report incidents of possible sexual
harassment or sexual violence?
Answer: Title IX requires a school to take prompt and effective steps reasonably
calculated to end sexual harassment and sexual violence that creates a hostile
environment (i.e., conduct that is sufficiently serious as to limit or deny a student’s ability
to participate in or benefit from the school’s educational program and activity). But a
school should not wait to take steps to protect its students until students have already
been deprived of educational opportunities.
OCR therefore recommends that a school train responsible employees to report to the
Title IX coordinator or other appropriate school official any incidents of sexual harassment
or sexual violence that may violate the school’s code of conduct or may create or
contribute to the creation of a hostile environment . The school can then take steps to
investigate and prevent any harassment or violence from recurring or escalating, as
appropriate. For example, the school may separate the complainant and alleged
perpetrator or conduct sexual harassment and sexual violence training for the school’s
students and employees. Responsible employees should understand that they do not
need to determine whether the alleged sexual harassment or sexual violence actually
occurred or that a hostile environment has been created before reporting an incident to
the school’s Title IX coordinator. Because the Title IX coordinator should have in-depth
knowledge of Title IX and Title IX complaints at the school, he or she is likely to be in a
better position than are other employees to evaluate whether an incident of sexual
Page 39 – Questions and Answers on Title IX and Sexual Violence

harassment or sexual violence creates a hostile environment and how the school should
respond. There may also be situations in which individual incidents of sexual harassment
do not, by themselves, create a hostile environment; however when considered together,
those incidents may create a hostile environment.
J-3. What type of training should a school provide to employees who are involved in
implementing the school’s grievance procedures?
Answer: All persons involved in implementing a school’s grievance procedures (e.g., Title
IX coordinators, others who receive complaints, investigators, and adjudicators) must
have training or experience in handling sexual violence complaints, and in the operation
of the school’s grievance procedures. The training should include information on working
with and interviewing persons subjected to sexual violence; information on particular
types of conduct that would constitute sexual violence, including same-sex sexual
violence; the proper standard of review for sexual violence complaints (preponderance of
the evidence); information on consent and the role drugs or alcohol can play in the ability
to consent; the importance of accountability for individuals found to have committed
sexual violence; the need for remedial actions for the perpetrator, complainant, and
school community; how to determine credibility; how to evaluate evidence and weigh it in
an impartial manner; how to conduct investigations; confidentiality; the effects of trauma,
including neurobiological change; and cultural awareness training regarding how sexual
violence may impact students differently depending on their cultural backgrounds.
In rare circumstances, employees involved in implementing a school’s grievance
procedures may be able to demonstrate that prior training and experience has provided
them with competency in the areas covered in the school’s training. For example, the
combination of effective prior training and experience investigating complaints of sexual
violence, together with training on the school’s current grievance procedures may be
sufficient preparation for an employee to resolve Title IX complaints consistent with the
school’s grievance procedures. In-depth knowledge regarding Title IX and sexual violence
is particularly helpful. Because laws and school policies and procedures may change, the
only way to ensure that all employees involved in implementing the school’s grievance
procedures have the requisite training or experience is for the school to provide regular
training to all individuals involved in implementing the school’s Title IX grievance
procedures even if such individuals also have prior relevant experience.

Page 40 – Questions and Answers on Title IX and Sexual Violence

J-4. What type of training on sexual violence should a school provide to its students?
Answer: To ensure that students understand their rights under Title IX, a school should
provide age-appropriate training to its students regarding Title IX and sexual violence. At
the elementary and secondary school level, schools should consider whether sexual
violence training should also be offered to parents, particularly training on the school’s
process for handling complaints of sexual violence. Training may be provided separately
or as part of the school’s broader training on sex discrimination and sexual harassment.
However, sexual violence is a unique topic that should not be assumed to be covered
adequately in other educational programming or training provided to students. The
school may want to include this training in its orientation programs for new students;
training for student athletes and members of student organizations; and back-to-school
nights. A school should consider educational methods that are most likely to help
students retain information when designing its training, including repeating the training at
regular intervals. OCR recommends that, at a minimum, the following topics (as
appropriate) be covered in this training:













Title IX and what constitutes sexual violence, including same-sex sexual violence,
under the school’s policies;
the school’s definition of consent applicable to sexual conduct, including examples;
how the school analyzes whether conduct was unwelcome under Title IX;
how the school analyzes whether unwelcome sexual conduct creates a hostile
environment;
reporting options, including formal reporting and confidential disclosure options
and any timeframes set by the school for reporting;
the school’s grievance procedures used to process sexual violence complaints;
disciplinary code provisions relating to sexual violence and the consequences of
violating those provisions;
effects of trauma, including neurobiological changes;
the role alcohol and drugs often play in sexual violence incidents, including the
deliberate use of alcohol and/or other drugs to perpetrate sexual violence;
strategies and skills for bystanders to intervene to prevent possible sexual violence;
how to report sexual violence to campus or local law enforcement and the ability to
pursue law enforcement proceedings simultaneously with a Title IX grievance; and
Title IX’s protections against retaliation.

The training should also encourage students to report incidents of sexual violence. The
training should explain that students (and their parents or friends) do not need to
determine whether incidents of sexual violence or other sexual harassment created a
Page 41 – Questions and Answers on Title IX and Sexual Violence

hostile environment before reporting the incident. A school also should be aware that
persons may be deterred from reporting incidents if, for example, violations of school or
campus rules regarding alcohol or drugs were involved. As a result, a school should review
its disciplinary policy to ensure it does not have a chilling effect on students’ reporting of
sexual violence offenses or participating as witnesses. OCR recommends that a school
inform students that the school’s primary concern is student safety, and that use of
alcohol or drugs never makes the survivor at fault for sexual violence.
It is also important for a school to educate students about the persons on campus to
whom they can confidentially report incidents of sexual violence. A school’s sexual
violence education and prevention program should clearly identify the offices or
individuals with whom students can speak confidentially and the offices or individuals
who can provide resources such as victim advocacy, housing assistance, academic
support, counseling, disability services, health and mental health services, and legal
assistance. It should also identify the school’s responsible employees and explain that if
students report incidents to responsible employees (except as noted in question E-3)
these employees are required to report the incident to the Title IX coordinator or other
appropriate official. This reporting includes the names of the alleged perpetrator and
student involved in the sexual violence, as well as relevant facts including the date, time,
and location, although efforts should be made to comply with requests for confidentiality
from the complainant. For more detailed information regarding reporting and responsible
employees and confidentiality, see questions D-1 to D-5 and E-1 to E-4.
K. Retaliation
K-1. Does Title IX protect against retaliation?
Answer: Yes. The Federal civil rights laws, including Title IX, make it unlawful to retaliate
against an individual for the purpose of interfering with any right or privilege secured by
these laws. This means that if an individual brings concerns about possible civil rights
problems to a school’s attention, including publicly opposing sexual violence or filing a
sexual violence complaint with the school or any State or Federal agency, it is unlawful for
the school to retaliate against that individual for doing so. It is also unlawful to retaliate
against an individual because he or she testified, or participated in any manner, in an OCR
or school’s investigation or proceeding. Therefore, if a student, parent, teacher, coach, or
other individual complains formally or informally about sexual violence or participates in
an OCR or school’s investigation or proceedings related to sexual violence, the school is
prohibited from retaliating (including intimidating, threatening, coercing, or in any way

Page 42 – Questions and Answers on Title IX and Sexual Violence

discriminating against the individual) because of the individual’s complaint or
participation.
A school should take steps to prevent retaliation against a student who filed a complaint
either on his or her own behalf or on behalf of another student, or against those who
provided information as witnesses.
Schools should be aware that complaints of sexual violence may be followed by retaliation
against the complainant or witnesses by the alleged perpetrator or his or her associates.
When a school knows or reasonably should know of possible retaliation by other students
or third parties, it must take immediate and appropriate steps to investigate or otherwise
determine what occurred. Title IX requires the school to protect the complainant and
witnesses and ensure their safety as necessary. At a minimum, this includes making sure
that the complainant and his or her parents, if the complainant is in elementary or
secondary school, and witnesses know how to report retaliation by school officials, other
students, or third parties by making follow-up inquiries to see if there have been any new
incidents or acts of retaliation, and by responding promptly and appropriately to address
continuing or new problems. A school should also tell complainants and witnesses that
Title IX prohibits retaliation, and that school officials will not only take steps to prevent
retaliation, but will also take strong responsive action if it occurs.
L. First Amendment
L-1. How should a school handle its obligation to respond to sexual harassment and sexual
violence while still respecting free-speech rights guaranteed by the Constitution?
Answer: The DCL on sexual violence did not expressly address First Amendment issues
because it focuses on unlawful physical sexual violence, which is not speech or expression
protected by the First Amendment.
However, OCR’s previous guidance on the First Amendment, including the 2001 Guidance,
OCR’s July 28, 2003, Dear Colleague Letter on the First Amendment,35 and OCR’s October
26, 2010, Dear Colleague Letter on harassment and bullying,36 remain fully in effect. OCR
has made it clear that the laws and regulations it enforces protect students from
prohibited discrimination and do not restrict the exercise of any expressive activities or
speech protected under the U.S. Constitution. Therefore, when a school works to prevent

35
36

Available at http://www.ed.gov/ocr/firstamend.html.
Available at http://www.ed.gov/ocr/letters/colleague-201010.html.

Page 43 – Questions and Answers on Title IX and Sexual Violence

and redress discrimination, it must respect the free-speech rights of students, faculty, and
other speakers.
Title IX protects students from sex discrimination; it does not regulate the content of
speech. OCR recognizes that the offensiveness of a particular expression as perceived by
some students, standing alone, is not a legally sufficient basis to establish a hostile
environment under Title IX. Title IX also does not require, prohibit, or abridge the use of
particular textbooks or curricular materials.37
M. The Clery Act and the Violence Against Women Reauthorization Act of 2013
M-1. How does the Clery Act affect the Title IX obligations of institutions of higher education
that participate in the federal student financial aid programs?
Answer: Institutions of higher education that participate in the federal student financial
aid programs are subject to the requirements of the Clery Act as well as Title IX. The Clery
Act requires institutions of higher education to provide current and prospective students
and employees, the public, and the Department with crime statistics and information
about campus crime prevention programs and policies. The Clery Act requirements apply
to many crimes other than those addressed by Title IX. For those areas in which the Clery
Act and Title IX both apply, the institution must comply with both laws. For additional
information about the Clery Act and its regulations, please see
http://www2.ed.gov/admins/lead/safety/campus.html.
M-2. Were a school’s obligations under Title IX and the DCL altered in any way by the
Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, including
Section 304 of that Act, which amends the Clery Act?
Answer: No. The Violence Against Women Reauthorization Act has no effect on a school’s
obligations under Title IX or the DCL. The Violence Against Women Reauthorization Act
amended the Violence Against Women Act and the Clery Act, which are separate statutes.
Nothing in Section 304 or any other part of the Violence Against Women Reauthorization
Act relieves a school of its obligation to comply with the requirements of Title IX, including
those set forth in these Questions and Answers, the 2011 DCL, and the 2001 Guidance.
For additional information about the Department’s negotiated rulemaking related to the
Violence Against Women Reauthorization Act please see
http://www2.ed.gov/policy/highered/reg/hearulemaking/2012/vawa.html.

37

34 C.F.R. § 106.42.

Page 44 – Questions and Answers on Title IX and Sexual Violence

N. Further Federal Guidance
N-1. Whom should I contact if I have additional questions about the DCL or OCR’s other Title
IX guidance?
Answer: Anyone who has questions regarding this guidance, or Title IX should contact the
OCR regional office that serves his or her state. Contact information for OCR regional
offices can be found on OCR’s webpage at
https://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm. If you wish to file a complaint
of discrimination with OCR, you may use the online complaint form available at
http://www.ed.gov/ocr/complaintintro.html or send a letter to the OCR enforcement
office responsible for the state in which the school is located. You may also email general
questions to OCR at [e-mail].
N-2. Are there other resources available to assist a school in complying with Title IX and
preventing and responding to sexual violence?
Answer: Yes. OCR’s policy guidance on Title IX is available on OCR’s webpage at
http://www.ed.gov/ocr/publications.html#TitleIX. In addition to the April 4, 2011, Dear
Colleague Letter, OCR has issued the following resources that further discuss a school’s
obligation to respond to allegations of sexual harassment and sexual violence:


Dear Colleague Letter: Harassment and Bullying (October 26, 2010),
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf



Sexual Harassment: It’s Not Academic (Revised September 2008),
http://www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.pdf



Revised Sexual Harassment Guidance: Harassment of Students by Employees, Other
Students, or Third Parties (January 19, 2001),
http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf

Page 45 – Questions and Answers on Title IX and Sexual Violence

In addition to guidance from OCR, a school may also find resources from the Departments
of Education and Justice helpful in preventing and responding to sexual violence:


Department of Education’s Letter to Chief State School Officers on Teen Dating
Violence Awareness and Prevention (February 28, 2013)
https://www2.ed.gov/policy/gen/guid/secletter/130228.html



Department of Education’s National Center on Safe Supportive Learning
Environments
http://safesupportivelearning.ed.gov/



Department of Justice, Office on Violence Against Women
http://www.ovw.usdoj.gov/

Page 46 – Questions and Answers on Title IX and Sexual Violence