UNITED STATES DEPARTMENT OF EDUCATION REGION xt NORTH CAROUNA OFFICE FOR CIVIL RIGHTS NORTE CARSUn 490 MARYLAND AVENUE, SW vaRciNa, WASHINGTON, DC 20202-1475 ‘WASHINGTON, DC August 31, 2015 Teresa A. Sullivan President University of Virginia P.O. Box 400224 Charlottesville, VA 22904-4224 RE: OCR Review No, 11-11-6001 Letter of Finding Dear Dr. Sullivan: This letter advises you of the outcome of the above-referenced compliance review that was initiated by the District of Columbia Office of the Office for Civil Rights (OCR), U.S. Department of Education (the Department), against the University of Virginia (ihe University) OCR’s review exemined the University’s handling of complaints and reports of sexual harassment, including sexual violence, under its policies and procedures to determine if the University has responded promptly and equitably. The review further examined whether any failure to respond appropriately allowed for the ereation and continuation of a sexually hostile environment, OCR investigated this ease under the authority of Title IX of the Education Amendments of 1972, Title TX and its implementing regulations, 34 C.F.R. §106, prohibit discrimination on the basis of sex in education programs and activities operated by recipients of Federal financial assistance from the U.S. Department of Education. The University receives such Federal funds and, therefore, is @ “recipient” subject to the requirements of Title IX. Procedural History On May 20, 2015, OCR held a telephone conference with the University’s counse] and representatives, during which OCR informed the University of the violations of Title IX that it had identified and the basis for its findings. OCR further informed the University that pursuant to § 303(b)(1) of OCR’s Case Processing Maruat, the University had a period of up to 90 (ninety) calendar days within which to reach agreement to resolve the identified issues. On the same date, OCR seut to the University via e-mail a proposed resolution agreement to resolve the identified issues. OCR subsequently met in person with the University’s counsel and representatives on June 4, June 30, by telephone on July 14, and in person on August 3 and The Dopartent of Education's mission ito promote student achtenmant ant preparation for glob cntpetitvonese ty fostering educational excellence end ensuring etal access, xmced gv Page 721 of 1820 iPage 2— OCR Review No. 11-11-6001 August 11, 2015, During these meetings, OCR reiterated the nature of the issues identified and the basis for its findings. The 90-day negotiations period ended on August 18, 2015, by which date the University had not entered into a resolution agreement to resolve the identified issues. Pursuant to § 303(6)(2)(ii) of the Case Processing Marual, OCR informed the University by letter dated August 19, 2015, that negotiations with the University bad reached an impasse. OCR further advised the University that pursuant to § 303(¢)(3) of the Case Processing Manual, OCR will issue a letter of findings that the University is in violation of Title IX on August 31, 2015, if a resolution agreement is not reached. After OCR’s issuance of the letter of impasse, OCR and the University engaged in further negotiations to reach a resolution agreement; to date those efforts have proven unsuccessful. Accordingly, OCR is issuing this letter of findings. ‘Summary of Findings OCR finds that, during the time period OCR reviewed for this compliance review, the University has had a mixed record regarding its satisfaction of Title IX pertaining to allegations of sexual violence and other forms of sexual harassment. The University has satisfied Title IX in some important respects. However, during the time period of OCR’s review, the University has violated Title IX requirements with respect to providing prompt and equitable responses to allegations of sexual harassment, including sexual violence, about which the University had notice.' In addition, ducing the time period of OCR’s review, the University’s Title IX Coordinator was not adequately coordinating the University efforts to comply with and carry out the University’s Title IX respousibilities and the University’s notice of non-discrimination was not adequately distributed. In July 2015 the University revised its policy and procedures to satisfy Title IX requirements; if applied appropriately, this policy and accompanying procedures are designed to provide a prompt and equitable response to reports of sexual harassment, including sexual violence. The University has generally provided supports to students who reported being subjected to sexual violence, such as access to counseling, academic adjustments, and changes to housing arrangements. In addition, the University took other steps during the course of OCR’s review to address the issue of sexual harassment, including sexual violence. The University has, among: other efforts, created and filled a dedicated Title IX Coordinator position; expanded investigative capacity in the Office of Equal Opportunity Programs; created and filled a Prevention Coordinator position in the Office of the Dean of Students to develop, evaluate, implement and assess evidence-based prevention strategies that seek to reduce sexual assault, gender-based violence and “high-risk activities in student organizations”; reviewed and enhanced training? and "A schoo! has notice of peer sexual harassment ifa responsible employee knew, or in the exercise of reasonable cere should have known, about the harassment, If an employee engazes in sexual harassment while acting (or reasonably appearing (o be acting) in the context of carrying out his or her responsibilities to provide aid, benefits, or services to students, the schoot is responsible for the discriminatory conduct; this is true whether or ot the reeipient has “notice” ofthe harassment, 2 of a . Bee acknow leaged the deticlencTes i the University's efforts to educate sladents on these Issues, explaining that it-year students do not absorb the information presented to them when they fist arrive on campus because of the ‘amount of information presented on myriad topics, the lack of veal opportunity for student discussion, andthe lack Page 722 of 1820Page 3 ~ OCR Review No. 11-11-6001 prevention programs for students and employees, including alcohol education programming and other student outreach efforts; secured funding to hire additional mental health counselors; and developed a Title IX website to provide a central resource for Title IX resources and educational materials. The University also formed the President’s Ad Hoc Group on University Climate and Culture to explore policies, practices, and organizational structure to support the goal of ensuring ‘he safety and well-being of students through developing strategies to prevent sexual violence, respond appropriately to incidents of sexual violence when they occur, and to improve campus climate conceming issues of sexual harassment and sexual violence; developed and launched awareness and marketing campaigns (Not on Our Grounds and #HOOSGotYourBack); and implemented bystander education programming. In addition, in February 2014, the University hosted a national conference, “Dialogue at UVA, Sexual Misconduct Among College Students,” which brought together national experts and professionals from approximately 60 colleges and universities to discuss best practices and strategics for prevention and response. ‘These important efforts are commendable and speak to a University commitment to embrace its Title IX responsibilities and promote a safe living, learning and working environment. OCR determined that, during the period of 2008 through fall 2014,° the University failed to respond in a prompt and ppropriate manner to reports of sexual violence in the absence of @ formal complaint.’ For the time period investigated, OCR reviewed 158 reports of possible sexual harassment, including allegations of rape and gang rape, OCR found that 41.1% of these reports were not handled in @ prompt and equitable manner. Even when formal complaints were filed, the University often resolved them through face-to-face mediation and without conducting an investigation, in violation of Title IX. The University received a total of 29 forinal complaints during the period from the 2008-2009 through the 2013-2014 academic years; of those, 41% were resolved through mediation and in 38% of the cases the University did not conduct a formal investigation. In other cases, the University’s handling of complaints filed under the formal hearing process was not prompt and equitable as required by Title IX for multiple rcasons, including that the University failed to resolve complaints in a timely manner, failed to address ‘whether the conduct alleged by a complainant constituted sexual misconduct as required by Title IX, and created a barrier to a complainant completing the hearing process, Further, the process for imposing remedies instituted by the University was not sufficient to eliminate the hostile environment, including for the broader University community where appropriate, or prevent recurrence of the harassment, As recognized above, the University generally provided interim support for students who reported being subjected to sexual violence, such as access to counseling, academic adjustments, and changes to housing arrangements. However, provision of interim measures alone is not a sufficient response to comply with the University’s Title IX obligations. In addition, the University did not appropriately respond to student complaints of contest to apply the information immediately, and that efforts to reach upper classmen were lacking, In addition, the University’s on-ine training program on sexual harassment specific to students is not mandatory, * OGR reviewed the fall 2014 reports that were provided by the University on December 1, 2014, “As used herein, “report” refers to uay situation in which a student or other individual notified the University of alleged sexual harassment, including sexual violence, “Formal coniplaint” refers to situations in which a student requested to participate in the frmmal or informal resolution process, Situations not included inthe term “formal complaint” are those in which the University had notice of wn allegation of sexual harassment, including sexual violence, but students did not participate in the formal or informal resohition process. Page 723 of 1820Page 4 — OCR Review No, 11-11-6001 involving sexual harassment committed by University employees, in that those complaints generally were handled within the academic departments, either by department chairs or other academic officers, with minimal or no investigation and without coordination by the Title IX Coordinator. Daring the period of its investigation, OCR also found that the University failed to identify and address a sexually hostile environment, In addition, during the period from 2008 through fall 2014, OCR found that the Title IX Coordinator was not adequately overseeing and coordinating all Title IX complaints, and the University’s notice of nondiscrimination was not adequately distributed. ‘The University had four policies pursuant to which it handled reports of sexual violence sitce the opening of OCR’s zeview: one that was in place from 2005 through July 2011, another thet was in place from July 2011 through March 2015, a third that covered the period from March 2015 to July 2015, and a policy that has been in place since July 2015. OCR determined the 2005 and 2011 policies did not comply with Title IX. As noted above, the University’s July 2015 policy, if applied appropriately, is designed to provide a prompt and equitable response to reports of sexual harassment, including sexual violence. OCR commends the University for its Toure 1 (20... Jalmost three weeks after the student reported the sexual assault and almost two weeks after ‘the Request for Confidentiality panel denied the student's request, the Deputy Title IX Coordinator met with the accused student to discuss the allegations. The accused student said that he and the student had done song ue told the accused student that be could not retaliate against anyone for baving reported this, but he did not give the accused student a no contact order because the student “did not want it.” TOT ORTET 2 There 1s no further documentation of any actions taken y the University in this matter. Student Report #9 ITT the Chair of the SMB learned from a resident assistant in University housing Hay disclosed that she may bave been sexually assaulted by a male student the previous month] His, he Chair ofthe SMB met with the[oeT en] to discuss emotional Support opffons; academic assistance; and other interim measures. They further discussed t police and the University processes, [PR O77 TOOT was interested in having the Chair of the SMB talk to the accused student about the allegations but did not want to ‘be part of such a confrontation. ‘The next day, the Chair of the SMB met with the accused student who denied the allegations. contacted the Chair of the SMB to report that she was having jwouble sleeping and completing her school work. ‘The Chair of the SMB assisted in putting in place academic accommodations. Subsequently, [PTAC ‘The Chair of the SMB responded that she would meet with them but “unfortunately, the actions of our office are limited to assistance and support of the survivor at this point as[DO1 OT) [EX jdoes not wish to file a complaint through the SMB.” [PF PMTCT [the meeting was held, The Chair of the SMB obsetved but did not participate In the meeting. After that meeting t disclosed to PROPINCT | that she HY OHM fhad been sexually assaulted by the acy nudent afew weeks after [OOO] TROL ERTICY [pom The slatement included mformation has other means to obtain relevant evidence of the alleged Sexual Misconduct; whether the report reveals a pattem of perpetration; and evidence suggesting predatory behavior by the alleged perpetrator. Page 749 of 1820Page 30 - OCR Reviow No. 11-11-6001 about the alleged sexual assault off RT ONCT as well as of PUTT Jand reference to 4 possible third victim of sexual assault by the accused student. OnfERTTOTT the [ROENTT met with the Chair of the SMB, provided a copy of the statement, and reported what she had learned about the alleged sexual assault of the other Be Jasked whether she andf®@ Or] [Eyer OCT] could fle a joint complaint against the accused student. PeTwTeT FORT OHTCT Onl contacted for Student [pererer independently contacted the Chair of the ‘SMB to report that she was sexually assaulted by the accused student. She said that she had reported because she had learned off O17) sexual assault by the accused student, but she did not wish to file a formal complaint The same day [ET Or FBX BRTECT On[STT ETT — the University issued a no contact order to the accused student at the request Cr rare i ae se on OHO OT In addition, the order stated that the accused student must{Oe Ome 7 Tamately [ORT ONT) ‘elected fo file a formal complaint with the Univer paren] Bure hearing the accused student was found responsible for sexual misconduct agains! suspension with return to the University contingent apon He wes sanctioned with a on [The sanction further provided that upon his Tetum, an admainistrator would ensure that hove) ONTO) jould not share any classes and that the no contact directive would remain in effect for the duration off[@L OX) ‘tenure at the University, Finally, the sanction stated that if the accused student was found responsible for any future violations of SMP or other aggravated misconduct he would be recommended for permanent expulsion from the University. Page 750 of 1820Page 31 - OCR Review No. 11-11-6001 dent Report #10 Inf&RTENTET] a student reported that shefOWT ETE TTT The University took no action because the accused student had graduated. There is no indication that the University made any effort to follow up with the fraternity or address the safety of the University community. ‘Student Report #11 InP Jcontacted the University to report the sexual assault of a female student, The University issued no-contact orders but there is no record that it investigated what occurred. ‘Student Report #12 1 2 student reported that she had been{RTOTET i ‘The University’s records reflect that a mecting ‘was scheduled with the accused, but do not reflect whether that meeting actually occurred or what happened and do not reflect any further action by the University. Student Report #13 IGE] reported to the University that [XO OTT exam on afemale student. The student told the University that she did not think her assailants were students and that PTE] There is no indication that the University undertook any investigation The University generally provided support to students who reported that they fave experienced sexual harassment or sexual violence, including offering counseling services, providing academic support, and regularly checking up to find out how students were doing. Nonetheless, OCR determined that the University’s handling of informal reports of possible sexual misconduct against both students and employees was not compliant with Title IX. First, in all the cases above, the University had sufficient information to investigate or othervvise take steps necessary to ensure it is providing a safe and nondiscriminatory environment for all students, including the student who reported the possible harassment. The University did not do so. Asa result, the University failed to determine whether a hostile environment existed or to consider ‘whether broader remedies were necessary to remedy the effects of such an environment and to provide a nondiscriminatory environment to all students, Second, in the case of Student Report #9, the University diverged from its established procedures for adessing concoms of sual haessiet including soeua sseule [PRTONTO) BIE NTC — The duty of the Deputy Title IX Coordinator is to ensure the compliance of the University with Title IX, which includes providing students with an environment free of sexual Page 751 of 1820Page 32 - OCR Review No. 11-11-6001 harassment, including sexual assault. The Deputy Title IX Coordinator must ensure that the University’s policies and procedures for reports of sexual misconduct are implemented with fidelity, and when he knows or should know about possible sexual misconduct, investi; or otherwise determine what occurred. Investigation did not in this case until (BBD filed a formal complaint of sexual misconduct o ‘two months after [BEE Treported the sexual assault and almost three weeks after notifying the Chair of the SMB that [ore OT alleged that she had been sexually assaulted by the same accuseit student Inaddition, as illustrated by Student Reports[OO OT the University’s position is that it cannot take action with regard to student-run private organizations such as fraternities and sorarities.'® In cases in which sexual harassment allegations have been raised against members of the Greek system, the University relied predominantly on the fratemity or, atic investigate and take responsive action. As illustrated by re Or eh ene were aware that the University would take no action with Teqard to Trateniy members. {tis notable that the University expressly decided that the incident reported in Student Report{®) Jwas serious enough that it could not honor the student's request for confidentiality, yet the University then limited its investigation to interviewing the accused student and took no action on its own to respond to the matter, instead[oO DE] ] [EH ONT NB) DATED ‘imilarly, the University made no effort itself to identi 3€ accused students involved in the alleged assault ch il in ‘The University’s relationship with fraternities, sororities, and other student organizations is sufficiently close that its “hands off” approach to responding to complaints of sexual harassment, including sexual violence, commitied by members of those organizations violated Title IX, The University has contracts with those organizations, provides University space for their meetings and events, and maintains an office the purpose of which is to liaise with fraternities and sororities.”” ‘The University also publicizes information about fraternities and sororities on its website, including information about the rules and procedures for joining these organizations. Notably, the University’s contract with fraternal organizations expressly prohibits the fratemal organizations from discriminating in membership selection on the basis of race, disability, and other protection categories and also prohibits hazing. However, itis silent on the issue of sexual ‘harassment by fraternal organization members. "" OCR notes, however, a statement from the President of tue University on November 22, 2014, indicated thatthe University temporarily suspended all fraternal organizations and associated Social activities and subsequently reinstated them as of January 12, 2015, "Ox January 6, 2015, the University President euthorized new addenda tothe University’s Fraternal Organization ‘Agreement in which fraternities were required to agree to certain safety menswres, including having a minimum of ‘three “sober and Jncig” fraterity brothers at exch fratemity function and not serving pre-mixed drinks or pumehes. ‘Soo hito//vpsa virsinia edu/fratemal-organization-as Page 752 of 1820Page 33 — OCR Review No. 11-11-6001 The University’s persistent failure to adequately respond to student reports of sextial harassment and sexual violence denied the community the benefit of a program in which the University addresses such reports in a prompt and equitable manner. The volume of uninvestigated reports of sexual assaults, many of which occurred in similar circumstances involving social interactions ‘that occur frequently in the University community, together with the University’s deficient response to substantiated allegations of sexual assault, created a perception that the University ‘would not take the steps necessary to remedy a hostile environment. The University’s deficient ‘responses to reports of sexual assault have also been noted by students. A student wrote in an e~ mail to the Chair of the SMB after she had reported that she had been drugged and sexually assaulted, to explain why she did not wish to move forward with a formal complaint, “The culture of our University is very riddled with these incidents, some of which have made it into the news. However, given how these things have been handled in the past at UVA, you will vnderstand why I am refusing to make this public or handle it within UVA’s ranks.” Similarly, five of the seven fraternity members who told OCR that they knew someone who had experienced sexual assault also said the sexual assault was not reported to the University because the victims did not believe the University would do anything about it. Accordingly, OCR finds the University failed to comply with Title IX in situations where a formal complaint had not been filed by not taking steps necessary to remedy the hostile snvironment, including for the broader University community where appropriate, or to prevent recurrence of similar conduct. In addition, the University abdicated its Title IX responsibilities, with regard to reports of sexual harassment including sexual violence that were raised against students in the Greek system, instead relying on fraternities to investigate and sanction students themselves. Review of Sanctions the University Imposed ‘OCR finds that the process the University employed during the period of OCR’s review to determine sanctions for sexual misconduct was not equitable. In nine cases in 2011-2012 through 2013-2014, accused students accepted responsibility or were found responsible for sexual harassment or sexual violence or otherwise agreed to resolve such a complaint through informal resolution. Those cases included allegations of conduct such as[T0.0 7 OATS) MOO) [None of the remedies addressed the ‘broader University community or steps intended to prevent the conduct from recurring. Instead, in eight of the nine cases, sanctions consisted of required participation in educational programming, substance abuse evaluations, and in some cases holding a student's degree in abeyance or 2 suspension of no longer that one year. In the final case, sanctions against an acoused student inchided BYOTEW | suspension. Moreover, the University did not always ensure that the sanctions were completed, thereby undermining its own efforts to remedy a hostile environment. In one case the University acknowledged to the complainant that the accused. student was allowed to graduate without having falfilled the sanctions imposed and in two other cases the University allowed an accused student to graduate with a commitment that he complete sanctions “on his honor.” Page 753 of 1820Page 34 OCR Review No. 11-11-6001 ‘The Chair of the SMB explained in a September 2014 University radio interview that the University's process effectively precludes expulsion as a sanction for sexual assault. When asked why the University had never expelled a student for sexual assault, the Chair said that the ‘SMB has not felt that it bas ever had enough evidence to expel a student found responsible for sexual misconduct. She further stated that if the SMB is only 51% certain that a person is guilty, it is not comfortable expelling a student permanently. When asked why a student who admits responsibility in the informal resolution process is not expelled, the Chair of the SMB stated that there is no advantage to admitting responsibility in the informal process, and if'¢ person is willing to admit responsibility that should be taken into account in sanctioning, She stated also that because there is no investigation in the informal resolution process, one is never 100% sure ‘What occurred, even if the accused student admits responsibility. The Chair of the SMBs statements indicated that the University does not consider expulsion as a possible sanction where a finding of sexual misconduct is based on a preponderance of evidence standard ot even when there is no question as to the accused student's culpability because he or she has admitted to the conduct. The statements also indicate that the University process is designed to discourage admission of responsibility and then to reward such an admission, when it is forthcoming, with the absence of enforced or commensucate sanction. That the University publicized these views in a campus radio interview communicates the official position of the University that limited sanctions would be imposed for sexual misconduct brought to the University’s attention. Sanctioning a student “on his honor” to pursue topical education for sexual assault, on the advance understanding that the University cannot monitor or confirm satisfaction of the sanction because the student will have graduated, is not commensurate with the allegations redressed. OCR finds that the University’s process for review of allegations of sexual assault prevents the imposition of sanctions that could be commensurate with the allegations, which is inequitable, B. Complaints Filed by Students Against Employees: the Equal Opportunity Prograin Policy Overview of the EOP Policy A separate policy and procedure applied to complaints of sexual misconduct brought by students, faculty, and employees against faculty and staff (JDHRM-009 or “EOP policy”). The Director of EOP was also the Title 1X Coordinator for the University. ‘The EOP Complaint Procedures stated that “[a] comp!aint may be filed with EOP by any Academic Division, Medical Center or College at Wise present or former employee or student, applicant for admission or employment, or participant in the University’s programs or activities who believes that (s)he has been unlawfully discriminated against or harassed on the basis of. sex (including pregnancy).” ‘The procedures provided that the EOP would investigate all formal (Le., written) complaints and determine based on its investigation if the allegations were substantiated. The EOP would then submit its findings and recommended course of action, including discipline for the accused shident and relief for the complainant, to the Vice President for the University who had authority for making the final decision on the complaint and notifying the parties of the outcome. Page 754 of 1820Page 35 — OCR Review No. 11-11-6001 ‘The EOP Complaint Procedures also provided the EOP with “the authority ta initiate an administrative review of a department or area at any time, in absence of a formal complaint, when in the judgment of the Director, such action is warranted, or when requested by a manager/supervisor/chair, Human Resources/Employee Relations official, or Vice President or Dean who has become aware of alleged discrimination or harassment in her/his area. Administrative review involves a similar investigative process as the investigation of a complaint.” Under the EOP policy, a faculty o staff member of the University could be found respousible for harassment, after an investigation by the Office of Equal Opportunity Programs (EOP), if EOP concluded that the complainant’s allegations were substantiated. On March 30, 2015, the University released substantial changes to its procedures for investigating and resolving reports of sexual harassment and violence against students and employces. OCR reviewed those policies and procedures and found that if applied appropriately, they are designed to provide a prompt and equitable response to reports of sexual ha.assment, including sexual violence. Review of Student Reports of Sexual Harassment Against Employees leat Report involving Employes #1 A complaint against a professor was raised inf) | by three female students and one male student enrolled in the professor's class, The complaint alleged that the professor made comments of a sexual nature] [PBNGs, TONTICY [PR TEHTC) The complaint ‘eomall fo the professor asks that he[T ONO) The students elected not to file a complaint; however, the EOP had knowledge that previous allegations of inappropriate comments of a sexual nature were made in[®)_] against the same professor. On the advice of BOP, the department chair met with the shidents and offered them en opportunity {o voluntarily complete the course without attending the professor's class. The department chair also asked the professor to complete additionat training on sexual harassment offered by EOP. E-mail communications between the department chair and the Title IX Coordinator reveal that EOP declined to take any further action on the matter in the absence of a formal complaint. ‘There is no indication that the department investigated the matter or considered the possible impact of the professor's behavior on other students in the class. The[O™ ] documentation also makes no reference to the{SL]complaint of sexual harassment by the professor, although the University had an obligation to consider the[PIG! J allegations in deterinining the seriousness of ‘the[EXO)] allegations and how to respond to them. Page 755 of 1820Page 36 — OCR Review No, 11-11-6001 student Report Involving Employee #2 oc] reviewed documentation related to a series of at least seven complaints between 2005 adtlagnafeore EE All oF the complaints, some of which were raised by stadents, involved conduct of asexual nature. The complaints referenced numerous sexually suggestive comments (e.g. 01] BRET ORTET [SRTENTCT including one incident that escalated to inappropriaie touching, The deparunent ‘hair Houred the EOP of the initial complaint inf] EOP counseled the chair to confront the ‘employee, ensure he was current on his Title IX training, and advise the student of her right to file a complaint. At that time, the department cheir issued the first in a series of letters of counseling to the employee, warning him that corrective action may be taken if the conduct continues. EOP was next notified of complaints against this staff member inf. althoug! documentation shows similar complaints were made to the department in| andor] and that the department issued a second letter of counseling to the employee infOO_] Inf. Ja graduate student filed a written complaint against this staff member, BOP investigated the complaint and determined that the allegation, if true, did not rise to the level of a violation of policy. The case was resolved through a negotiated resolution between the parties, and the department issued another letter of counseling. In the winter of ©. ] an employee in the department filed a complaint with University Haman Resources (UHR) alleging this staff member directed suggestive comments and innuendo to her on multiple occasions. EOP was not notified of this complaint, which was resolved through a third letter of counseling. This complaint was followed later the same year by a complaint to the department that the staff member verbally harassed six females. At this point, UHR initiated an inquiry and notified EOP of its actions, UHR proposed to the department heads that UHR conduct a climate survey of the department, but the department heads rejected the idea, and in the[©™®. XTC) | the department issued a fifth letter of counseling. ‘The EO Officer for ADA Compliance and EO Training acknowledged to OCR that he was aware ‘that two or three of the complaints involved unwelcome conduct of @ sexval nature, and that he believed that the department addressed them, though there is no documentation that EOP followed up with the department, The EO Officer explained the series of complaints as isolated behaviors over a mumber of years that were not severe or pervasive, yet EOP never fully investigated the matter or considered whether the employee’s persisiently inappropriate and sexually charged behavior was creating a hostile environment for women in the department. The University informed OCR in| peor | ‘OK ] that it dismissed the staff member. Analysis of the EOP Policy OCR finds that the EOP relied too heavily on academic departments to resolve sexual harassment complaints made by students against University employees and, as a result, fell short of its obligation to respond promptly and equitably to all Title IX complaints. The Director/Title IX Coordinator told OCR that the EOP receives “lots of student complaints,” but the EO Officer for Policy and Legal Compliance, who was the principal investigator for the BOP and bad been investigating formal complaints for the EOP since 2009 told OCR that she recalled receiving only one student corsplaint, which was filed by a former student regarding conduct of a former Page 756 of 1820Page 37 — OCR Review No. 11-11-6001 employee approximately four years prior; that information was consistent with the files reviewed by OCR. In practice, most of the student complaints involving sexual harassment/violence committed by a University employee were handled within the academic departments, either by department chairs or other academic officers. OCR leamed through file reviews and interviews that individuals often report concerns about sexual harassment to department heads, who, in tur, investigate the concems. OCR’s investigation confirmed that department heads receive minimal training on sexual harassment and misconduct and no investigative training at all. OCR found that, as a result, there often was minimal ot no investigation at the department level. Rather, the typical department-level response was to send the accused a letter telling the accused to cease and desist and warning that the accused could be subject to discipline should this happen again. The EOP officers told OCR their office routinely advised academic department chairs to report all complaints involving allegations that may fall within Title IX to the ROP. The Director/Title IX Coordinator said that they train department heads to report any complaints or incidents to EOP, to follow up with BOP regarding its efforts to address them, and to document the complaints and their response. Departments also were required to submit an anal report to the EOP that documents this information. However, OCR found that many departments did not routinely inform the EOP about complaints received at the department level, particularly cepeat complaints against the same employee. Even when departments reported complaints to the EOP, OCR leamed through its review of informal contacts and interviews of EOP staff that the EOP had only sporadic and limited involvement in and oversight of departments? responses to student complaints. The EOP officers advise departments generally on how to address the incident, which typically consisted of confronting the accused employee, ensuring the employee was current on his/her required University Title IX training, and informing the stdent/complainant of his/her right to file a formal complaint with the EOP. EOP provided little guidance to the departments about how to conduct an investigation. Additionally, the EO Officer for Policy and Legal Compliance told OCR that they generally did not monitor the actions the departments take to investigate or otherwise determine whether harassment occurred and, more importantly, generally did not review the departments’ findings or determinations in a case, to the extent there are any to review. The Title IX Coordinator said that the EOP may investigate or initiate an informal inquiry if the conduct as alleged rises to the level of a violation, or if there have been previous reports of unlawful or inappropriate conduct by the accused person, although OCR found no documentation to suggest this has ever happened and the BO officers were not able to provide an example to OCR. In short, OCR determined that the EOP failed to monitor and review responses to complaints of sexual barassment/sexual violence at the departmental level to ensure that student coruplaints against employees are addressed in a prompt and equitable manner, in violation of Title IX. Page 757 of 1820Page 38 — OCR Review No. 11-11-6001 Conclusion OCR determined that the University has violated Title IX through its failure to investigete or adequately address student reports of sexual assault in the absence of a formal complaint during the period of 2008 through fall 2014. The investigative record includes documentation of more than 150 reports of possible sexual harassment, including sexual assaults and gang rape, each of ‘which put the University on notice, at a minimum, that a hostile environment may have existed. Once a schoo! knows or reasonably should know about such harassment, Title IX requires the school to take immediate action to eliminate the harassment, prevent ils recurrence, and address its effects. The University failed to do so. Instead, OCR found that based on the University’s documentation of informal reports of sexval misconduct, the University’s practice was that, while it implemented interim measures to support students who were the alleged victims, unless the student chose to file a formal complaint, the University did not pursue the matter through the disciplinary process or consider the broader impact of alleged incidents on the campus community. The University’s failure to provide prompt and equitable responses to reports of sexual misconduct therefore contributed to the existence of a hostile environment, in violation of 34C.F-R § 106.31. Further, in situations in which a formal complaint was filed, the University failed to resolve them promptly and equitably, including by not instituting remedies thal were sufficient to eliminate the hostile environment (including for the broader University community, ‘where appropriate) or prevent its recurrence, in violation of 34 C.F.R. § 106.8(b). Based on the deficiencies in the University’s response to complaints of sexual violence, OCR found that the University failed to identify and address a sexually hostile environment during the period investigated, in violation of 34 C.F.R. § 106.31. The grievance procedures through which the University handled reports of sexual violence during the period of the investigation did not comport with Title IX, in violation of 34 C.P.R. § 106.8(b). In addition, the Title IX Coordinator was not adequately overseeing and coordinating all Title IX complaints and the University’s notice of nondiscrimination was not adequately distributed, in violation of 34 C.F.R. §§ 106.8(a) and 106.9. This letter of finding should not be construed as covering any other issues regarding compliance with Title IX that may exist and are not addressed herein. Pursuant to the Title VI regulation at 34 C.F.R. § 110.7(6)(1), as incorporated in the Title IX regulation at 34 CF.R. § 106.71, OCR must seek voluntary compliance with respect to the violations set forth in this letter. OCR is required to attempt to resolve any findings of violation through negotiations prior to the issuance of the letter of findings. As noted above, to date ‘OCR’s attempts (o resolve this matter with the University through negotiations have not been successful. Accordingly, pursuant to $303(b)(3) of OCR’s Case Processing Manual, OCR is issuing this letter of findings that the University has violated Title IX and its implementing regulation. Please be advised that the issuance of this letter of findings does not preclude further negotiations concerning the resolution agreement between the University and OCR, and OCR. encourages the University to achieve voluntary compliance with Title IX and the implementing Page 758 of 1820Page 39 ~ OCR Review No. 11-11-6001 regulation. However, in the event that the University does not enter into a resolution agreement that addresses the issues raised by this compliance review within 30 (thirty) calendar days of the date of this letter, OCR will be obligated to initiate an enforcement proceeding. Pursuant to 34 C.F.R. § 100.8(2), the enforcement proceeding may result in an administrative decision to suspend, terminate, and/or refuse to grant or to continue federal financial assistance to the University, I must also inform you that if OCR is unable to secure voluntary compliance from the University with Title IX in this case, OCR may exercise its authority to impose e deferral on funding to the University pending the outcome of the enforcement proceeding. Such a deferral will include ‘new programs from which applications are pending and applications for substantial increases in continuing programs. See 20 U.S.C. § 1232; 42 U.S.C. § 20004-5; and 28 C.F.R. § 50.3. ntact me at 202-453-5932 or via email at If you have any questions, please alice.wender@ed.gov. Sincerely, Cle b Dende Alice B. Wender Regional Office Director Page 759 of 1820