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Written By James R. Marsh on February 21, 2014

Title IX Prohibits Sexual Harassment and Sexual Violence at Colleges and Universities

On April 4, 2011, the Department of Education’s Office for Civil Rights issued an historic “Dear Colleague” letter which outlined the requirements colleges and universities must employ to protect students from sexual harassment and sexual violence at college. One of the primary goals of the landmark civil rights lawsuit filed by the Marsh Law Firm is to preserve the critical gains established by the DE’s letter.

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Here is the “Know Your Rights” pamphlet issued by the Department of Education

Know Your Rights: Title IX Prohibits Sexual Harassment1 and Sexual Violence Where You Go to School

Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., is a Federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities (hereinafter “schools”) receiving any Federal funds must comply with Title IX. Under Title IX, discrimination on the basis of sex can include sexual harassment or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion.

Below is additional information regarding the specific requirements of Title IX as they pertain to sexual harassment and sexual violence.

What are a school’s responsibilities to address sexual harassment and sexual violence?

  • A school has a responsibility to respond promptly and effectively. If a school knows or reasonably should know about sexual harassment or sexual violence that creates a hostile environment, the school must take immediate action to eliminate the sexual harassment or sexual violence, prevent its recurrence, and address its effects.
  • Even if a student or his or her parent does not want to file a complaint or does not request that the school take any action on the student’s behalf, if a school knows or reasonably should know about possible sexual harassment or sexual violence, it must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.
  • A criminal investigation into allegations of sexual harassment or sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.

What procedures must a school have in place to prevent sexual harassment and sexual violence and resolve complaints?

Every School Must Have And Distribute A Policy Against Sex Discrimination

  • Title IX requires that each school publish a policy that it does not discriminate on the basis of sex in its education programs and activities. This notice must be widely distributed and available on an on-going basis.
  • The policy must state that inquiries concerning Title IX may be referred to the school’s Title IX coordinator or to OCR.

Every School Must Have A Title IX Coordinator

  • Every school must designate at least one employee who is responsible for coordinating the school’s compliance with Title IX. This person is sometimes referred to as the Title IX coordinator. Schools must notify all students and employees of the name or title and contact information of the Title IX coordinator.
  • The coordinator’s responsibilities include overseeing all complaints of sex discrimination and identifying and addressing any patterns or systemic problems that arise during the review of such complaints.

Every School Must Have And Make Known Procedures For Students To File Complaints Of Sex Discrimination.

  • Title IX requires schools to adopt and publish grievance procedures for students to file complaints of sex discrimination, including complaints of sexual harassment or sexual violence. Schools can use general disciplinary procedures to address complaints of sex discrimination. But all procedures must provide for prompt and equitable resolution of sex discrimination complaints.
  • Every complainant has the right to present his or her case. This includes the right to adequate, reliable, and impartial investigation of complaints, the right to have an equal opportunity to present witnesses and other evidence, and the right to the same appeal processes, for both parties.
  • Every complainant has the right to be notified of the time frame within which: (a) the school will conduct a full investigation of the complaint; (b) the parties will be notified of the outcome of the complaint; and (c) the parties may file an appeal, if applicable.
  • Every complainant has the right for the complaint to be decided using a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred).
  • Every complainant has the right to be notified, in writing, of the outcome of the complaint. Even though federal privacy laws limit disclosure of certain information in disciplinary proceedings:
  • Schools must disclose to the complainant information about the sanction imposed on the perpetrator when the sanction directly relates to the harassed student. This includes an order that the harasser stay away from the harassed student, or that the harasser is prohibited from attending school for a period of time, or transferred to other classes or another residence hall.
  • Additionally, the Clery Act (20 U.S.C. §1092(f)), which only applies to postsecondary institutions, requires that both parties be informed of the outcome, including sanction information, of any institutional proceeding alleging a sex offense. Therefore, colleges and universities may not require a complainant to abide by a non-disclosure agreement, in writing or otherwise.
  • The grievance procedures may include voluntary informal methods (e.g., mediation) for resolving some types of sexual harassment complaints. However, the complainant must be notified of the right to end the informal process at any time and begin the formal stage of the complaint process. In cases involving allegations of sexual assault, mediation is not appropriate.

    • If you want to learn more about your rights, or if you believe that a school district, college, or university is violating Federal law, you may contact the U.S. Department of Education, Office for Civil Rights, at (800) 421-3481 or ocr@ed.gov. If you wish to fill out a complaint form online, you may do so here.

    1 Use of the term “sexual harassment” throughout this document includes sexual violence unless otherwise noted.

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    Finally, the Department of Education also issued this “Dear Colleague Letter: Sexual Violence Background, Summary, and Fast Facts” which further explains the Letter.

    Dear Colleague Letter: Sexual Violence
    Background, Summary, and Fast Facts
    April 4, 2011

    Sexual Violence Statistics and Effects

    • Acts of sexual violence are vastly under-reported.1 Yet, data show that our nation’s young students suffer from acts of sexual violence early and the likelihood that they will be assaulted by the time they graduate is significant. For example:
    • Recent data shows nearly 4,000 reported incidents of sexual battery and over 800 reported rapes and attempted rapes occurring in our nation’s public high schools.2 Indeed, by the time girls graduate from high school, more than one in ten will have been physically forced to have sexual intercourse in or out of school.3
    • When young women get to college, nearly 20% of them will bevictims of attempted or actual sexual assault, as will about 6% of undergraduate men.4
  • Victims of sexual assault are more likely to suffer academically and from depression, post-traumatic stress disorder, to abuse alcohol and drugs, and to contemplate suicide.5

    • Why is ED Issuing the Dear Colleague letter (DCL)?

    Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. Sec. 1681, et seq., prohibits discrimination on the basis of sex in any federally funded education program or activity. ED is issuing the DCL to explain that the requirements of Title IX cover sexual violence and to remind schools6 of their responsibilities to take immediate and effective steps to respond to sexual violence in accordance with the requirements of Title IX. In the context of the letter, sexual violence means physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent. A number of acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion.

    What does the DCL do?

    • Provides guidance on the unique concerns that arise in sexual violence cases, such as the role of criminal investigations and a school’s independent responsibility to investigate and address sexual violence.
    • 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, FERPA, and the Clery Act7 as it relates to a complainant’s right to know the outcome of his or her complaint, including relevant sanctions facing the perpetrator.
    • Provides examples of remedies and enforcement strategies that schools and the Office for Civil Rights (OCR) may use to respond to sexual violence.

    What are a school’s obligations under Title IX regarding sexual violence?

    • Once a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate action to investigate or otherwise determine what occurred.
    • If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.
    • A school must take steps to protect the complainant as necessary, including interim steps taken prior to the final outcome of the investigation.
    • A school must provide a grievance procedure for students to file complaints of sex discrimination, including complaints of sexual violence. These procedures must include an equal opportunity for both parties to present witnesses and other evidence and the same appeal rights.
    • A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.
    • A school must notify both parties of the outcome of the complaint.

    How can I get help from OCR?

    OCR offers technical assistance to help schools achieve voluntary compliance with the civil rights laws it enforces and works with schools to develop approaches to preventing and addressing discrimination. A school should contact the OCR enforcement office serving its jurisdiction for technical assistance. For contact information, please visit ED’s website here.

    A complaint of discrimination can be filed by anyone who believes that a school that receives Federal financial assistance has discriminated against someone on the basis of race, color, national origin, sex, disability, or age. The person or organization filing the complaint need not be a victim of the alleged discrimination, but may complain on behalf of another person or group. For information on how to file a complaint with OCR, visit the OCR website or contact OCR’s Customer Service Team at (800) 421-3481.

    1For example, see HEATHER M. KARJANE, ET AL., SEXUAL ASSAULT ON CAMPUS: What Colleges And Universities Are Doing About It 3 (Nat’l. Institute of Justice, Dec. 2005).
    2 SIMONE ROBERS, ET AL., INDICATORS OF SCHOOL CRIME AND SAFETY 104 (U.S. Dep’t of Education & U.S. Dep’t of Justice, Nov. 2010), available at here.
    3 EATON, D. K., KANN, L., KINCHEN, S., SHANKLIN, S., ROSS, J., HAWKINS, J., ET AL., YOUTH RISK BEHAVIOR SURVEILLANCE-UNITED STATES 2009, Morbidity and Mortality Weekly Report.
    4 CHRISTOPHER P. KREBS ET AL., THE CAMPUS SEXUAL ASSAULT STUDY FINAL REPORT xiii, 5-5 (Nat’l. Criminal Justice Reference Service, Oct. 2007), available here.
    5 For example, see WORLD HEALTH ORGANIZATION, WORLD REPORT ON VIOLENCE AND HEALTH 162-164 (Etienne G. Krug, et al. eds., 2002), available here;
    CENTERS FOR DISEASE CONTROL, UNDERSTANDING SEXUAL VIOLENCE: FACT SHEET 1 (2011), available here.
    6 “Schools” includes all recipients of federal funding and includes school districts, colleges, and universities.
    7 The Family Educational Rights and Privacy Act is at 20 U.S.C. Sec. 1232g, and the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act is at 20 U.S.C. Sec. 1092(f).

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    James R. Marsh

    Partner at Marsh Law Firm PLLC
    A University of Michigan Law School graduate, James represents victims of campus sexual assault and rape; Title IX violations; sex abuse in schools, colleges, churches, and government and military institutions; online sexual exploitation; child pornography; sextortion, and revenge porn. His case on compensation for victims of child pornography in federal criminal restitution proceedings was recently decided by the United States Supreme Court. That case, United States v. Paroline, led to the Amy and Vicky Child Pornography Victim Restitution Improvement Act currently pending in the House and Senate. James founded the nationally recognized Children's Law Center in Washington, DC, and is an experienced trial attorney, and frequent commentator, lecturer, and Huffington Post Blogger. He now leads Marsh Law Firm in New York which is recognized worldwide for its work helping sexually abused survivors obtain justice and rebuild their lives with dignity and respect.

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