UNITED STATES DEPARTMENT OF EDUCATION REGION VE (OFFICE FOR CIVIL RIGHTS ARKANSAS LOUSIANA, 1999 BRYAN ST, SUITE 1620 MESSSIPPL DALLAS, TX 75201-5810 Teas September 29, 2017 Ref: 06151575 Also transmitted via email This letter is to inform you that the U.S. Department of Education (Department), Office for Civil Rights (OCR), Dallas Office has completed its investigation of the above-referenced complaint against the San Marcos Consolidated Independent School District (SMCISD or District), in which the you alleged discrimination on the basis of sex and engaged in retaliation. Hereinafter, you will be referred to as “the complainant” and your client will be referred to as “the Student.” OCR is responsible for determining whether entities that receive or benefit from federal financial assistance from the Department (recipients), or an agency that has delegated investigative authority to the Department, are in compliance with Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., and its implementing regulation at 34 C.F.R. Part 106, which prohibit discrimination on the basis of sex in any education program or activity receiving Federal financial assistance. Additionally, the regulation implementing Title IX, at 34 C.ER. § 106.71, incorporates by reference 34 C.F.R. § 100.7(e) of the regulation implementing Title VI of the Civil Rights Act of 1964, which provides that: No recipient or other person shall intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by [regulations enforced by OCR] or because [one] has made a complaint, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this part. SMCISD is a recipient of Federal financial assistance, Therefore, OCR has jurisdictional authority to resolve this complaint under Title IX. A finding that a recipient has violated Title IX must be supported by a preponderance of the evidence (i.e., sufficient evidence to prove that it is more likely than not that unlawful discrimination or retaliation occurred). When there is a significant conflict in the evidence and OCR is unable to resolve that conflict, it generally must conclude that there is insufficient evidence to establish a violation of the law. The Department of Education's mission is to promote student achievement and preparation for global competitiveness ‘hy festering educational excellence and ensuring equal acess, wwwed govPage 2 - San Marcos Independent School District, Ref. 06151575, In reaching its compliance determination, OCR interviewed the Complainant and present and former SMCISD staff members, and reviewed information provided by the Complainant and SMCISD. Asa result of OCR’s investigation and analysis, OCR has determined that there is insufficient evidence to establish a violation of Title IX with regard to the issue investigated. Provided below is an explanation of how this determination was reached. Background OCR determined that the Student was a senior at San Marcos High School (SMHS) during the 2014-2015 school year, and was captain of the SMHS Diamond Line Dance Team. During Fall 2014, the Student sent several nude images via her smartphone to her then-boyfriend, a 15-year old student. According to the complainant, these images were meant to be viewed by the Student’ s boyfriend only. On December 19, 2014, the Student discovered that the nude images were circulating among some male SMHS students without her consent. That same day, the Student and another female student reported the incident to the school resource officer (SRO) at 3:25 p.m., 30 minutes before SMHS students were to be dismissed for the holiday break. As discussed further below, the District investigated, the Student's mother and the complainant appealed through all levels of the grievance process, and the District ultimately found in the Student’s favor in April 2015. ALLEGATION 1 The complainant alleged that SMCISD’s response to the Student's report of the distribution of her nude images was ineffective. Accordingly, OCR investigated whether SMCISD discriminated against the Student on the basis of sex by failing to take prompt and effective responsive action to address sexually harassing conduct by other students and SMCISD's staff members (ie., nonconsensual distribution of the Student’s nude digital image), which was sufficient to constitute a hostile environment, of which it had or should have had notice, during the 2014-15 school year. Legal Standard ‘The regulation implementing Title IX, at 34 C.F.R. § 106.31, provides generally that, except as, provided elsewhere in the regulation, “. . . no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any . . . education program or activity” operated by recipients of Federal financial assistance. The Title IX implementing regulation, at 34 C.F.R. §§ 106.8 and 106.9, also requires a recipient to designate a Title IX Coordinator, adopt grievance procedures, and implement specific and continuing steps to provide notice that it does not discriminate on the basis of sex in its education programs or activities. Sexual harassment that creates a hostile environment is a form of sex discrimination prohibited by Title IX. Sexual harassment is unwelcome conduct of a sexual nature, which may include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature. Sexual harassment creates a hostile environment if the conduct by anage 3 — San Marcos independent School District, Ref. 06151575, employee, another student, or a third party is so severe, persistent or pervasive that it denies or limits a student’s ability to participate in or benefit from the recipient's program. To investigate of otherwise resolve issues of sexual harassment, OCR considers whether: (1) the recipient has a disseminated policy prohibiting sex discrimination under Title IX and effective grievance procedures; (2) the recipient appropriately investigated or otherwise responded to allegations of sexual harassment; and (3) the recipient has taken immediate and effective corrective action responsive to any harassment that the investigation determined took place, including effective actions to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects. ‘indings of Fact and Analysis OCR investigated whether SMCISD disseminated a policy prohibiting sex discrimination under Title IX and effective grievance procedures for the 2014-2015 school year. OCR determined that the District posted a notice of nondiscrimination on its website, as well as published it in the SCOC and SMHS Student Handbook. The notices prohibited discrimination on the basis of sex, race/color/national origin, age, religion, disability and other bases prohibited by law in providing education services, activities and programs. ‘With respect to notice of the Title IX Coordinator, the SMHS Student Handbook, District website and Section FB (local) of the District’s Board Policies identified the Title IX Coordinator by name and listed her office address and telephone number. SMCISD had also adopted and published Board Policies for both students and employees prohibiting sex discrimination by students, employees, and third parties, which included investigative procedurés to handle discrimination complaints, and grievance procedures. The Policies specifically prohibited and discussed sexual harassment, clearly stating what type of conduct constituted sexual harassment and provided examples of the same, The Board Policies also recognized that the District must continue its investigation independent from any criminal or regulatory investigation. Additionally, the SMHS Student Handbook also provided an overview of sexual and gender-based harassment, retaliation and other forms of discrimination under the SMCISD policy. ‘The Board Policies provided for a three-level grievance process (Principal, Superintendent and School Board levels), including the adequate, reliable, and impartial investigation of complaints, with an opportunity to present witnesses and other evidence, as well as designated and reasonably prompt timeframes for the major stages of the grievance process. The Board Policies also required SMCISD to take interim measures to address the prohibited conduct, and to provide, at the conclusion of each level of the three-level process, notice to both sides of the outcome. Furthermore, the Board Policies prescribed that if discrimination was found, corrective action must be taken. Based on the foregoing, OCR determined that SMCISD has disseminated policies prohibiting sex discrimination and effective grievance procedures that comply with the Title IX regulation at 34 CFR. §§ 106.8 and 106.9. OCR also investigated whether SMCISD appropriately investigated or otherwise responded to the complainant's allegations of sexual harassment; and took immediate and effective corrective