November 17, 2014
Dear Know Your IX and the United States Students Association:
Thank you for your organizations’ letter to Secretary Duncan and me, dated November 6, 2014, in which you shared your concern about the economic consequences faced by survivors of student-on-student sexual violence and urged the Department’s Office for Civil Rights to clarify schools’ obligations to address this problem under Title IX of the Education Amendments of 1972.
As your letter notes, OCR’s recent guidance has made clear that when student-on-student sexual violence creates a hostile environment, the school must take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, and prevent its recurrence. Further, 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.
Our most recent guidance on this topic specifically noted that “[i]nterim measures are determined by a school on a case-by-case basis.” We highlighted a concrete question about whether a school’s provision of access to all students to counseling on a fee basis would suffice for providing counseling as an interim measure before the completion of its investigation when necessary to ensure equal access to education programs and to protect a complainant. In our answer, we noted that “[i]f 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.”
The principles in that answer apply more broadly to the provision of remedies. If remedies are necessary to ensure equal access to education programs, a school cannot require a student to pay for receipt of those remedies. The specific remedies offered and the process for implementing those remedies will vary depending on the facts of each case. 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 withdraw or 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.
As you note in your letter, resolution agreements OCR has negotiated to resolve investigations have included agreements to reimburse survivors for educational expenses where those remedies are required to eliminate a hostile environment or remedy the effects of sexual violence, as appropriate. We hope and expect that greater transparency regarding resolutions of our investigations, coupled with our guidance, will cement the principles of Title IX.
Thank you for your continued leadership in advocating for the rights of survivors of sexual assault in our schools.
Catherine E. Lhamon
Assistant Secretary for Civil Rights