UNITED STATES DEPARTM ENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS, REGION XV
1350 E UC LID AVE NUE, SUITE 325
C LE VE LAND, OH 44115

REGION XV
MICHIGAN
OHIO

September 11, 2014

Dr. Michael V. Drake
President
Ohio State University
205 Bricker Hall
190 North Oval Mall
Columbus, Ohio 43210
Re: OCR Docket #15-10-6002
Dear Dr. Drake:
This is to advise you of the resolution of the above-referenced compliance review that
was initiated by the U.S. Department of Education, Office for Civil Rights (OCR), on
June 23, 2010. The compliance review examined whether The Ohio State University (the
University) responded promptly and equitably to complaints, reports and any other notice
to the University of incidents of sexual harassment, sexual assault and other forms of
sexual violence and whether any failure to respond appropriately allowed for the creation
and/or continuation of a sexually hostile environment.
OCR initiated this review under Title IX of the Education Amendments of 1972 and its
implementing regulation at 34 C.F.R. Part 106 (Title IX), which prohibit discrimination
on the basis of sex in programs and activities that receive Federal financial assistance
from the U.S. Department of Education. OCR had jurisdiction to proceed in this case
because the University is a recipient of such Federal financial assistance.
This letter summarizes the facts and conclusions found by OCR during its investigation
and resolution of this review. OCR determined that the University’s notice of
nondiscrimination complies with the Title IX requirements and that the University has
taken several important steps during the course of this investigation to bring its practices,
as well as its policies and procedures, more fully in line with Title IX requirements.
However, OCR determined that the University violated Title IX in that OSU’s written
grievance policies and procedures failed to comply with the requirements of Title IX.

The Department of Education’s mission is to promote student achievement and preparation for global competitiveness
by fostering educational excellence and ensuring equal access.
www.ed.gov

 Page 2 – Dr. Michael V. Drake
During the course of this compliance review, the University conducted an investigation
of alleged sexual harassment within its Marching Band and found that there was a
sexually hostile environment for students in the Marching Band of which the University
had notice and failed to adequately address. The University requested to resolve the
review with a resolution agreement prior to the completion of OCR’s investigation of all
the issues in the review. As such, OCR is not making any further compliance
determinations under Title IX, including whether the University has complied with the
Title IX requirements for the prompt and equitable resolution of sexual harassment and
sexual violence complaints in the implementation of its sexual harassment policies and
procedures. On September 8, 2014, the University signed the enclosed resolution
agreement (the Agreement), which when fully implemented, will address all of the issues
in this compliance review. OCR incorporates in the Resolution Agreement the
University’s own corrective action steps for the Marching Band as requirements.
The University is the largest university in the state of Ohio with approximately 61,000
students, including 48,000 undergraduates and 13,000 graduate and professional students.
The student body is comprised of slightly more male than female students -approximately 50.4% male and 49.6% female. The majority of University students
(approximately 56,000) attend classes at the main campus located in Columbus, Ohio.
The remaining students attend classes at one of the five Ohio regional campuses located
in Lima, Mansfield, Marion, Newark, and Wooster.1
OCR’s investigation in this compliance review included reviewing the University’s
policies and procedures related to sexual harassment and sexual violence, review of
internal case investigation files from academic years 2008-2009 and 2009-2010 and then
also from the 2012-2013 academic year to January 2014, interviews of relevant
University personnel, interviews of students through focus groups, written interview
questions of various student constituencies and interviews of resident advisors (RAs) in
the University’s student housing.
Legal Authority
The Title IX regulation 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, denied the benefits of, or subjected to discrimination in education
programs or activities operated by recipients of Federal financial assistance.
Under Title IX, colleges and universities that receive Federal financial assistance are
responsible for providing students with a nondiscriminatory educational environment.
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.
Sexual harassment can include unwelcome sexual advances, requests for sexual favors,
and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault
1

Information obtained from the University’s spring 2014 term enrollment report:
http://oesar.osu.edu/student_enrollment.aspx. OSU has informed OCR that currently it enrolls 63,000
students.

 Page 3 – Dr. Michael V. Drake
or acts of sexual violence. Sexual harassment of a student creates a hostile environment
if the conduct is sufficiently serious that it interferes with or limits a student’s ability to
participate in or benefit from the recipient’s program.2
OCR considers a variety of related factors to determine if a sexually hostile environment
has been created and considers the conduct in question from both an objective and a
subjective perspective. Factors examined include the degree to which the misconduct
affected one or more students’ education; the type, frequency, and duration of the
misconduct; the identity of and relationship between the alleged harasser and the subject
or subjects of the harassment; the number of individuals involved; the age and sex of the
alleged harasser and the subject of the harassment, the size of the school, location of the
incidents, and the context in which they occurred; and other incidents at the school. The
more severe the conduct, the less the need to show a repetitive series of incidents; this is
particularly true if the harassment is physical. A single or isolated incident of sexual
harassment may, if sufficiently severe, create a hostile environment. A single instance of
rape is sufficiently severe to create a hostile environment.
Once a recipient knows or reasonably should know of possible sexual harassment, it must
take immediate and appropriate action to investigate or otherwise determine what
occurred. If an investigation reveals that sexual harassment created a hostile
environment, a recipient must take prompt and effective steps reasonably calculated to
end the harassment, eliminate any hostile environment, prevent the harassment from
recurring and, as appropriate, remedy its effects. These duties are a recipient’s
responsibility, regardless of whether a student has complained, asked the recipient to take
action, or identified the harassment as a form of discrimination. A recipient has notice of
harassment if a responsible employee actually knew or, in the exercise of reasonable care,
should have known about the harassment. If a recipient delays responding to allegations
of sexual harassment or responds inappropriately, the recipient’s own action may subject
the student to a hostile environment. If it does, the recipient will be required to remedy
the effects of both the initial sexual harassment and the effects of the recipient’s failure to
respond promptly and appropriately. A recipient’s obligation to respond appropriately to
sexual harassment complaints is the same irrespective of the sex or sexes of the parties
involved.
Even if the sexual harassment did not occur in the context of an education program or
activity, a recipient must consider the effects of the off-campus sexual harassment when
evaluating whether there is a hostile environment on campus or in an off-campus

2

The applicable legal standards described herein are more fully discussed in OCR’s 2011 Dear Colleague
letter on Sexual Violence, which is available at: http://www2.ed.gov/about/offices/list/ocr/letters/colleague201104.html (April 4, 2011); for further clarification on this topic, see “Questions and Answers on Title
IX and Sexual Violence,” at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (April
29, 2014). See also OCR’s 2010 Dear Colleague letter on Harassment and Bullying, which is available at
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html (October 26, 2010), and OCR’s
Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or
Third Parties, at http://www.ed.gov/about/offices/list/ocr/docs/shguide.html (January 19, 2001).

 Page 4 – Dr. Michael V. Drake
education program or activity because students often experience the continuing effects of
off-campus sexual harassment while at school or in an off-campus education program or
activity.
In situations where reported sexual harassment may constitute a criminal act, a recipient
should notify a complainant3 of the right to file a criminal complaint, and should not
dissuade a complainant from doing so either during or after the recipient’s internal Title
IX investigation. Recipients should not wait for the conclusion of a criminal
investigation or criminal proceeding to begin their own Title IX investigation and, if
needed, must take immediate steps to protect the complainant in the educational setting.
A law enforcement investigation does not relieve the recipient of its independent Title IX
obligation to investigate the conduct.
Sexual harassment of a student by a faculty member or other school employee also
violates Title IX. If an employee who is acting (or who reasonably appears to be acting)
in the context of carrying out these responsibilities over students engages in sexual
harassment, the recipient is responsible for remedying any effects of the harassment on
the complainant, as well as for ending the harassment and preventing its recurrence. This
is true whether or not the recipient has notice of the harassment.
The Title IX regulation, at 34 C.F.R. § 106.8(b), requires recipients to adopt and publish
grievance procedures providing for the prompt and equitable resolution of complaints
alleging any action that would be prohibited by Title IX, including sexual harassment and
sexual assault. Title IX does not require a recipient to provide separate grievance
procedures for sexual harassment complaints, including sexual assault complaints. A
recipient may use student disciplinary or other separate procedures for these complaints;
however, any procedures used to adjudicate complaints of sexual harassment or sexual
assault, including disciplinary proceedings, must afford the complainant a prompt and
equitable resolution.
In evaluating whether a recipient’s grievance procedures are prompt and equitable, OCR
reviews all aspects of a recipient’s policies and practices, including the following
elements that are critical to achieve compliance with Title IX:

3

1)

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

2)

application of the procedure to complaints alleging discrimination and
harassment carried out by employees, other students, or third parties;

3)

provision for adequate, reliable, and impartial investigation of complaints,
including the opportunity for both the complainant and respondent to
present witnesses and other evidence;

The term “complainant” as used throughout this letter refers to an individual who is the subject of alleged
sexual harassment, sexual assault or other forms of sexual violence.

 Page 5 – Dr. Michael V. Drake
4)

designated and reasonably prompt timeframes for the major stages of the
complaint process;4

5)

written notice to both parties of the outcome of the complaint and any
appeal; and

6)

assurance that the recipient will take steps to prevent recurrence of any sex
discrimination or harassment found to have occurred, and to correct its
discriminatory effects on the complainant and others, if appropriate.

To ensure that students and employees have a clear understanding of what constitutes
sexual violence, the potential consequences for such conduct, and how the recipient
processes complaints, the recipient’s Title IX grievance procedures should also include
the following in writing:

4

1.

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

2.

adequate definitions of sexual harassment (which includes sexual assault)
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)
in resolving a complaint;

9.

notice of potential remedies for students;

OCR evaluates on a case-by-case basis whether the resolution of sexual violence complaints is prompt
and equitable. OCR has noted that, based on its experience in typical cases, there is a 60-calendar day
timeframe for investigations. “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.” See F-8, in “Questions and Answers on Title IX and Sexual Violence.”

 Page 6 – Dr. Michael V. Drake
10.

notice of potential sanctions against perpetrators; and

11.

sources of counseling, advocacy and support.

The procedures for addressing and resolving complaints of sexual harassment should be
written in language that is easily understood, should be easily located, and should be
widely distributed.
Pending the outcome of an investigation of a report or complaint, Title IX requires a
recipient to take steps to ensure equal access to its education programs and activities and
to protect the complainant and ensure his or her safety as necessary, including taking
interim measures before the final outcome of an investigation. The recipient should take
these interim measures promptly once it has notice of the harassment allegation and
should provide the complainant with periodic updates on the status of the investigation.
The recipient 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 specific interim measures implemented and the process for implementing those
measures will vary depending on the facts of each case. In general, when taking interim
measures, recipients should minimize the burden on the complainant. Recipients should
also check with complainants to ensure that the interim measures are effective and, if
ineffective, identify alternatives. Recipients should also ensure that the complainant is
aware of his or her Title IX rights and any available resources, such as 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.
In addition, recipients should provide training to employees about the applicable
grievance procedures and their implementation. All persons involved in implementing a
recipient’s grievance procedures (e.g., Title IX coordinators, investigators and
adjudicators) must have training or experience in handling complaints of sexual
harassment, and in the recipient’s grievance procedures as well as applicable
confidentiality requirements. In sexual assault cases in particular, the fact-finder and the
decision-maker also should have adequate training or knowledge regarding sexual
assault. Recipients should also provide training about its grievance procedures and their
implementation to any employees likely to witness or receive reports of sexual
harassment; including faculty, recipient law enforcement unit employees, recipient
administrators, recipient counselors, general counsels, health personnel, and resident
advisors. Recipients need to ensure that their employees are trained so that they know to
report sexual harassment to appropriate officials, and so that employees with the
authority to address sexual harassment know how to respond properly.
Throughout the recipient’s investigation and in any hearing, both parties must have equal
opportunity to present relevant witnesses and other evidence and to otherwise participate
in the grievance process. Also, the recipient must use a preponderance of the evidence

 Page 7 – Dr. Michael V. Drake
standard for investigating allegations of sexual harassment. If a recipient provides for
appeal of the findings, it must do so for both parties. The recipient must maintain
documentation of all proceedings.
For Title IX purposes, if a student requests that his or her name not be revealed to the
accused or asks that the recipient not investigate or seek action against the accused, the
recipient should inform the student that honoring the request may limit its ability to
respond fully to the incident, including pursuing disciplinary action against the accused.
The recipient should notify students of the information that will be disclosed, to whom it
will be disclosed, and why. The recipient 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. If the student still requests
that his or her name not be disclosed to the accused or that the recipient not investigate or
seek action against the accused, the recipient 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 harassment. If the school determines
that it can respect the student’s request not to disclose his or her identity to the accused, it
should take all reasonable steps to respond to the complaint consistent with the request.
When a recipient 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. OCR has advised recipients to be aware that
complaints of sexual harassment/assault may be followed by retaliation by the alleged
perpetrator or his or her associates. For instance, friends of the alleged perpetrator may
subject the complainant to name-calling and taunting. Title IX requires recipients to
protect the complainant and witnesses and ensure their safety as necessary. At a
minimum, this includes making sure that complainants and witnesses know how to report
retaliation by university officials, other students, or third parties by making follow-up
inquiries to see if any retaliation or new incidents of harassment have occurred and
respond promptly and appropriately to address any new problems.
Grievance procedures generally may include voluntary informal mechanisms
(e.g., mediation) for resolving some types of sexual harassment complaints; however, it is
improper for a complainant alleging harassment to be required to work out the problem
directly with the alleged perpetrator, and certainly not without appropriate involvement
by the recipient (e.g., participation by a trained counselor, a trained mediator, or, if
appropriate, a university faculty member or administrator). 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. Moreover, in cases involving allegations of sexual
assault/violence, mediation is not appropriate even on a voluntary basis. OCR
recommends that recipients clarify in their grievance procedures that mediation will not
be used to resolve sexual assault/violence complaints.

 Page 8 – Dr. Michael V. Drake
The Title IX implementing regulation, at 34 C.F.R. § 106.8(a), requires that a recipient
designate at least one employee to coordinate its responsibilities to comply with and carry
out its responsibilities under that law. The recipient is further required, by the Title IX
implementing regulation at 34 C.F.R. § 106.9(a), to notify all students and employees of
the name (or title), office address, and telephone number of the designated employee(s).
In addition, OCR’s 2011 Dear Colleague Letter on Sexual Violence states that recipients
should notify all students and employees of the electronic mail (email) address of the
Title IX Coordinator. The coordinator’s responsibilities include overseeing the
recipient’s response to Title IX reports and complaints of sexual harassment/assault, and
identifying and addressing any patterns or systemic problems revealed by such reports
and complaints. The coordinator or designee should be available to meet with students,
as needed. The Title IX coordinator should not have other job responsibilities that may
create a conflict of interest. Also, as noted above, recipients must ensure that employees
designated to serve as Title IX coordinators have training or experience in handling
sexual harassment and sexual violence complaints, and in the operation of the recipient’s
grievance procedures.
The regulation implementing Title IX, at 34 C.F.R. § 106.9, requires that recipients notify
applicants for employment, students, employees, and all unions or professional
organizations holding collective bargaining or professional agreements with the recipient
that it does not discriminate on the basis of sex in its education programs or activities,
and that it is required by Title IX not to discriminate in such a manner. The notice must
also state that questions regarding Title IX may be referred to the recipient’s Title IX
coordinator or to OCR.
Factual Information
A. Title IX Coordinator
When OCR initiated this compliance review in 2010, the University identified several
points of contact for Title IX compliance, including the Student Judicial Affairs (SJA)
Director, the Human Resources (HR) Director, and the General Counsel. In 2012, the
University created a new centralized compliance office, the Office of University
Compliance and Integrity (Compliance/Integrity Office). The Office addresses, among
other issues, Title IX compliance and houses the Title IX Coordinator, who is responsible
for overseeing the University’s efforts to prevent and address sexual harassment and
sexual assault. In addition, the University delegated Title IX investigatory
responsibilities to three Deputy Title IX Coordinators, one each for students, faculty and
staff, and athletics. In May 2014, the University named a new Title IX Coordinator,
whose name and contact information, along with the names and contact information for
the three Deputy Coordinators, can be found on the University’s website.

 Page 9 – Dr. Michael V. Drake
The University also established a Sexual Violence Consultation Team (SVCT). The
SVCT is a group of first responders that generally meets biweekly to discuss all sexual
harassment/violence complaints received by the University to determine whether the
correct responder is investigating the complaint and that the appropriate resources are
being provided, to ensure that correct referrals are being made, and to provide review and
input on related issues and inquires.
The University informed OCR that the Title IX Coordinator regularly meets and
communicates with constituent offices and is regularly apprised of developing issues,
including during meetings of the University’s SVCT. In addition, an electronic
notification system is used to alert the Title IX Coordinator of student conduct matters
involving allegations of sexual harassment/assault and the Title IX Coordinator is
provided with copies of reports of all Title IX matters reported to the University police.
B. Notice of Nondiscrimination
When OCR initiated this compliance review, the University’s notice of
nondiscrimination did not meet the Title IX requirements, at 34 C.F.R. § 106.9, in that,
although some of the University’s professional schools (e.g., the Moritz College of Law)
had individual notices of nondiscrimination on the basis of sex, not all schools within
the University had a notice of nondiscrimination and there was not a general Universitywide notice. During the review, the University established a University-wide notice of
nondiscrimination that covers sex discrimination and meets the Title IX requirements.5
The University posted the nondiscrimination notice on the University’s main web page
and the Title IX webpage.6 The University also created a web link to the
nondiscrimination statement on the footer banner on many of the University web pages.
The notice provides the names and contact information for the Title IX Coordinator and
the Deputy Coordinators.
C. Sexual Harassment Complaint Investigation Process and
Procedures
At the start of OCR’s investigation, the University’s policies and procedures addressing
sex discrimination, including sexual harassment against students, included guidelines
posted on the Office of Student Life’s Student Conduct (Student Conduct) website titled
“General Information: Sexual Harassment by Students” and the University’s Code of
Student Conduct (the Code). The policies and procedures did not include designated
timeframes for the completion of the major stages of an investigation. In addition,
although the University used its disciplinary Code to address complaints of sexual
harassment against students, the Code did not ensure that the complainant was provided
an equal opportunity to participate in the grievance process.

5
6

See http://hr.osu.edu/public/documents/policy/resources/110nondiscrimnotice.pdf?t=20148111348.
See http://www.osu.edu and http://titleix.osu.edu/.

 Page 10 – Dr. Michael V. Drake
Of the students who responded to OCR’s request for information in 2011, a minority
reported having knowledge or personal experience with incidents of sexual
harassment/assault. Some students expressed concerns about the University not having
taken sufficient or any action to respond to reports of sexual assaults that had occurred,
and about the University not sufficiently addressing retaliation fears for complainants.
The majority of students interviewed by OCR in 2011 stated that they believed the
University takes complaints of sexual harassment/assault seriously and is responsive.
The majority of students reported they feel comfortable reporting sexual
harassment/assault; however, there was substantial confusion among students, including
RAs, regarding how and where to report incidents of sexual harassment/assault. RAs are
required to inform the Housing Directors of any sexual harassment reports or complaints
they receive and inform the student of his or her rights to file with the Title IX
Coordinator and Student Conduct, and law enforcement. Nearly a quarter of the RAs
who responded to OCR’s request for information in 2011 indicated that they were
unaware of a process for responding to complaints of sexual harassment/assault.
Additionally, there seemed to be a correlation between the level of training received and
the awareness of policies and procedures for responding to complaints of sexual
harassment/assault. Over 20% of the RAs reported having received little or no training to
address complaints of sexual harassment/assault and a majority of those individuals also
reported being unaware of a complaint process for sexual harassment/assault.
After the initiation of OCR’s investigation and issuance of OCR’s 2011 Dear Colleague
Letter on Sexual Violence, the University revised its sexual harassment/violence policies
and procedures. In 2012, the University also created the new Compliance/Integrity
Office.
In December 2013, University officials launched a new and dedicated Title IX website
within the University website that contains a compilation of resources and is designed to
be a “one-stop shop” for information on Title IX and sex discrimination.7 University
officials indicated that the website is designed to provide easier access to information
about Title IX issues, including the ability to file a complaint directly on that site. The
Title IX web page is located within the site for the University’s Compliance/ Integrity
Office. The main page includes the University’s nondiscrimination statement, names and
contact information for the current Title IX Coordinator and the three Deputy
Coordinators, and a link (“Submit a Complaint/Report”) to an electronic complaint form.
The website states that the complaint form is not required to make a complaint and that a
complaint can be made through the University’s anonymous reporting line
(“EthicsPoint”), by phone, or by web, or by contacting the University police, Student
Conduct, HR, or the Title IX Coordinator directly. This page indicates the Title IX
Coordinator will oversee the investigation of the complaint and that the University
prohibits sexual harassment by “vendors, contractors, volunteers, and third parties acting
as agents for the University.” The page also states that “conduct alleged to constitute
harassment is evaluated from the perspective of a reasonable person.” The website also
includes links to a “Title IX Program Statement” dated May 13, 2014, which provides an
7

The Title IX web page can be found at http://titleix.osu.edu/.

 Page 11 – Dr. Michael V. Drake
outline of the resources available at the University, links to five University sexual
harassment/violence policies, as well as reporting and complaint procedures, policies,
education and training, and support services.
The Title IX page includes a link to “Accommodations,” which states that OSU will
assist students who report sexual harassment and sexual violence in obtaining medical
support and information regarding available legal and Student Conduct resources, as well
as counseling and support services, and will also assist students in notifying the
University Police or other local police if the assistance of law enforcement is requested.
The available “accommodations” listed include changing the complainant’s living
situation, including obtaining emergency housing or moving into another residence
facility, assisting the complainant with exploring options to address academic concerns,
such as transferring class sections, taking an incomplete in a class or filing a grade
grievance and assisting the complainant with financial concerns, including providing
financial aid guidance. The statement directs students to make requests for
accommodations “to the department in which the accommodation is sought.”
Currently, there are five university policies that address sexual assault and sexual
harassment:
1.

Code of Student Conduct, which prohibits all types of sexual misconduct;8

2.

Policy Guidelines: “Sexual Harassment by Students in the Non-Employment
Context Policy;”9

3.

HR Policy 1.15, “Sexual Harassment Policy;”10

4.

HR Policy 1.10, “Affirmative Action, Equal Employment Opportunity and
Nondiscrimination/Harassment Policy;”11 and

5.

HR Policy 7.05, “Workforce and Family Relationship Violence Policy.”12
1.

Code of Student Conduct (Code)

The University identified its Code as its grievance procedure for student Title IX
complaints. The Code can be found on the University’s Student Conduct and Title IX
websites. University officials stated that the Code is reviewed every three years, and in
August 2011, the University conducted a review of the Code to address the points in
OCR’s April 2011 Dear Colleague letter on sexual violence. Subsequently, the
University notified OCR that the Code was revised on June 18, 2012; this is the version
currently posted on the University’s website.
8

http://studentlife.osu.edu/csc/
http://studentconduct.osu.edu/page.asp?id=35.
10
http://hr.osu.edu/public/documents/policy/policy115.pdf?t=201482793124.
11
http://hr.osu.edu/public/documents/policy/policy110.pdf?t=201482793225.
12
http://hr.osu.edu/public/documents/policy/policy705.pdf?t=20148279343’.
9

 Page 12 – Dr. Michael V. Drake
The Code prohibits sexual misconduct, which it defines as physical contact or other nonphysical conduct of a sexual nature in the absence of clear, knowing and voluntary
consent, including but not limited to: non-consensual sexual intercourse or contact,
sexual exploitation, sexual harassment as defined in applicable University policy, and
indecent exposure. The Code defines consent as the act of knowingly and affirmatively
agreeing to engage in a sexual activity and states that consent must be voluntary. The
Code provides that an individual cannot consent who: is substantially impaired by any
drug or intoxicant; has been compelled by force, threat of force, or deception; is unaware
that the act is being committed; whose ability to consent is impaired because of a mental
or physical condition; or who is coerced by supervisory or disciplinary authority. The
Code provides that consent may be withdrawn at any time, and that prior sexual activity
or relationship does not, in and of itself, constitute consent. The same definitions of
sexual misconduct and consent appear on the Title IX web page.
The Code states that anyone who has witnessed what the person believes to be a possible
code violation should notify an authorized University official and provides a number of
choices about where to make the initial report: the residence hall director if it occurred in
the residence halls; the director of student conduct if it is a non-residence hall incident;
the coordinator of the committee on academic misconduct if related to academic
misconduct; and the University police or other appropriate law enforcement agency if it
involves a violation of a criminal law in addition to a code violation.
The Code states that the University may proceed with disciplinary action under the Code
independently of any criminal proceeding and may impose sanctions for violation of the
Code, even if such criminal proceeding is not yet resolved or is resolved in the student’s
favor. Under the Student Conduct procedures section, the Code states that University
police or other appropriate law enforcement has primary responsibility for the
investigation of acts that involve suspected violation of federal, state, or local laws, while
residence hall directors, assistant hall directors, and the Director of Student Conduct are
authorized to investigate alleged violations other than those involving academic
misconduct. The Code states in the Hearing Procedures section that it uses the
preponderance of the evidence standard to determine if a particular student violated the
Code. Upon completion of an investigation, the investigator will decide upon an
appropriate course of action, which may include: taking no action; deferring further
action with or without conditions; or initiating charges with the appropriate University
student conduct body.
2.

Policy Guidelines: “Sexual Harassment by Students in the NonEmployment Context”

The Policy Guidelines state that the University will maintain an environment for “work
and study” free from sexual harassment through prompt corrective measures taken to stop
sexual harassment whenever it occurs. The Policy Guidelines define sexual harassment
in the same manner as other documents listed on the Title IX web page. The Policy
Guidelines further provide examples of behavior that may be considered sexual
harassment and describes the variety of relationships where sexual harassment can occur

 Page 13 – Dr. Michael V. Drake
(peer on peer, faculty and student, staff and student, supervisor and employee). The
Guidelines state that filing a complaint with Student Conduct does not preclude the
individual from filing a complaint with an external agency. The Guidelines also state that
the University prohibits retaliation against an individual for reporting sexual harassment
or for participating in an investigation and that allegations of retaliation should be
directed to Student Conduct.
3.

HR Policy 1.15: “Sexual Harassment Policy”

HR Policy 1.15 is the most commonly referenced HR document in the University’s Title
IX materials. This policy, dated April 24, 2014, states that it applies to faculty, staff,
student employees, graduate associates, students, and volunteers. However, the policy
also states that cases involving student-on-student sexual harassment not in the
employment setting will be handled by Student Conduct pursuant to the Code of Student
Conduct. It does not state where complaints against third parties may be filed. It states
that sexual harassment is prohibited and that prompt corrective measures will be taken to
stop sexual harassment whenever it occurs. The policy defines sexual harassment the
same as it is defined on the Title IX web page. It provides examples of sexual
harassment.
HR Policy 1.15 requires any HR professional, supervisor, chair/director, or faculty to
report sexual harassment of which they become aware to HR by using the HR
discrimination/harassment complaint form or other appropriate documentation within five
working days. It states that HR and the relevant unit’s HR personnel will determine how
to proceed with the complaint. HR Policy 1.15 states that, when it is determined that
sexual harassment has occurred, steps will be taken to ensure the harassment is stopped
immediately. It further states that “corrective measures consistent with the severity of the
offense will be imposed consistent with applicable university procedures and may include
sanctions,” and lists types of sanctions that might be imposed. HR Policy 1.15 states that
“sexual harassment concerns can often be resolved by the person being harassed
addressing the matter directly with the alleged harasser.” It states that “when such
resolution is not feasible” then a faculty or staff member, student, or volunteer may bring
an allegation.
The policy states that complaints of sexual harassment may be made with the HR
professional within the department or unit, a HR consultant, or any supervisor, faculty
member, or faculty or staff administrator. The policy states that these designated
individuals will be given training by HR on handling sexual harassment allegations.
HR Policy 1.15 indicates that the procedures for filing and investigating allegations of
sexual harassment are addressed in HR “Guidelines for Investigating Complaints of
Discrimination and Harassment” (Guidelines).13 The Guidelines are dated January 1,
2013, and state that they apply to faculty, staff, students, student employees, and
volunteers, and that HR is “ultimately responsible for investigating all complaints of
discrimination and harassment.” The Guidelines state that complaints should be filed
13

http://hr.osu.edu/public/documents/hrpubs/guidelinesdiscrim.pdf?t=201482793140.

 Page 14 – Dr. Michael V. Drake
within 180 days. They state that the individual should talk with the responsible party or
seek to resolve the situation in consultation with the supervisor and/or college or unit HR
professional and indicate that only if this step is taken and the issue is not resolved may
the individual file a complaint.
The Guidelines indicate that the method of investigation may range along a continuum
from “a one-on-one conversation with the accused with an agreement as to further
interactions” to “an inquiry with several witness interviews.” The Guidelines state that
the investigator might conduct interviews and gather relevant documents, but do not
explicitly state that the parties will be given the opportunity to identify witnesses or
evidence. The Guidelines state that written notice of the outcome will be provided to
both parties. There is no appeal process. No specific timeframe is provided for the
stages of the investigation, although the Guidelines state that investigations should be
concluded “within a reasonable timeframe from the date the complaint was filed.”
The Guidelines state that, if discrimination, including harassment, is found to have
occurred, the University will take necessary action steps to correct the behavior. Only
sanctions are listed as potential action steps. There is no provision for interim measures
or systemic or individual remedies.
The Title IX Coordinator is not mentioned in the Guidelines as having any role in the
process at any stage. The Guidelines state that all investigation records will stay within
HR, although records of corrective action taken might appear in employing unit’s files.
4.

HR Policy 1.10: “Affirmative Action, Equal Employment Opportunity
& Non-Discrimination/Harassment Policy”

HR Policy 1.10, dated September 1, 2013, applies to faculty, staff, student employees,
graduate associates, volunteers, and applicants. The policy only applies to employment
discrimination. HR Policy 1.10 states that the Guidelines described above are the
procedures for the filing and management of discrimination and harassment complaints
under the policy.
5.

HR Policy 7.05, “Workforce and Family Relationship Violence
Policy”

HR Policy 7.05, which was updated on April 15, 2014, applies to faculty, staff and
students that are graduate associates and student employees. The policy was promulgated
to promote a safe work environment and to prevent workplace violence.
In addition to the University’s new Title IX dedicated website, OCR’s investigation
revealed that information about the University’s sexual harassment policies and
procedures is included on several other University websites, including the websites for
1) Student Conduct; 2) Campus Police; 3) The Office of Diversity and Inclusion, 4) The
Student Wellness Center, and 5) HR.

 Page 15 – Dr. Michael V. Drake
For example, on the Student Conduct website, the University in 2014 added various
resources, including the Student Code of Code and under the section titled “Sexual
Violence,” information about sexual harassment and sexual violence, including the
definitions of misconduct, consent, filing complaints, the standard of proof used to
investigate allegations of sexual harassment and sexual violence, available resources, the
law enforcement process and availability of no contact and protection orders , The link
titled “Title IX Compliance” states that the University will provide a timely and thorough
investigation and, barring exigent circumstances, cases of sexual misconduct or sexual
harassment will be resolved within 60 days. This page also states that all parties will be
informed of the decision of the hearing officer or a University Conduct Board in writing,
and all parties have the right to appeal and will be notified of any appeals. Appeals must
be filed within 5 business days and any responses to an appeal by the other party must be
filed within 5 business days from notice of the appeal. The University also provides
pages titled “Victim’s Rights” and “Accused’s Rights,” which both provide similar
information about both parties’ rights during the Title IX complaint process, including
but not limited to the University conducting a timely and thorough investigation, the right
for both parties to be informed of the University’s process and possible outcomes,
available resources, the right to one advisor throughout the process, and the right to be
updated throughout the investigation and informed of the outcome.
The University’s campus police web page includes a link titled “Reporting Sexual
Assault” that has information about reporting sexual assault, the relationship between the
University police and Student Conduct, the University’s disciplinary procedures as they
relate to complaints of sexual assault, contact information, criminal and civil options, and
victim resources, both on and off campus. The site also has a section titled “The Ohio
State University Survivor’s Rights Guarantee.”
The Student Conduct process is governed by the guidelines and policies described above.
While students are directed to file complaints with the Title IX Coordinator, Deputy
Coordinators and Student Conduct, students may also first report sexual harassment to
Sexual Violence Education and Support (SVES,) Wellness Center, and Residence Life,
who forward complaints to the Title IX Coordinator. OCR asked University officials
about the fact that complaints could be filed in several different places and about efforts
made by the University to coordinate complaint investigations. For example, the Code
provides that the Student Conduct Board for residential life only hear cases involving
Code violations that occur within University housing. The Board is required to refer
cases back to Office of Student Conduct if it appears that the violation may be serious
enough to warrant suspension or dismissal. The University explained that this would
happen by an RA elevating the matter to the assistant hall director, and then the hall
director for a decision. The University said there is a great deal of collaboration between
those offices on an as-needed basis. SVES and the Wellness Center are required to report
any complaints to the Title IX Coordinator. In addition, the SVCT ensures coordination
across the campus.

 Page 16 – Dr. Michael V. Drake
The former SJA Director advised OCR that she trained residence hall staff on residence
hall staff on the connection between Title IX and sexual harassment/sexual assault and
resources for students. There is a web-based document system (CIF), in which housing
staff reports are stored and to which Student Conduct has access. Student Conduct
reviews the CIF reports to ensure the residence halls are not keeping a matter that should
be referred to Student Conduct.
Student Conduct Sexual Harassment Investigation. According to OCR interviews
with University officials and review of the applicable policies and procedures, Student
Conduct does the fact-finding for Student Conduct sexual harassment investigations. The
complainant does not have the burden of presenting his or her case or providing the
sexual harassment allegations. Student Conduct interviews complainants, explains the
process, provides interim relief and provides information regarding available resources.
If the complainant is not willing to speak with the Student Conduct investigator, Student
Conduct still makes a determination about whether to move forward with its
investigation. Student Conduct also interviews the accused, other relevant witnesses, and
gathers reports and other information. It then determines if there is cause to charge a
student with a violation of the Code. Student Conduct may encourage the complainant to
report to police or may make a third-party report; Student Conduct can report the matter
to the University police if the matter is within its jurisdiction (i.e., if the incident giving
rise to the complaint occurred on campus). The accused can accept responsibility, ask for
an administrative hearing with an officer (who did not participate in the investigation), or
request a hearing before a judicial panel (faculty, staff, students). Faculty and staff have
three-year rotations on the Student Conduct hearing panel, while students have two-year
rotations.14 An administrative hearing can be quicker than a judicial panel, which takes
the longest. Both the complainant and the accused may have a support person or advisor
present during hearings. The SJA Director stated that the panel can have expert
consultants (e.g., on medical issues). The expert is not a witness, but acts as consultant to
interpret facts or issues in which the panel lacks expertise. However, OCR’s review of
the hearing files did not indicate the use of an expert in any hearings.
Under the Code, there are a minimum of four panel members for a hearing panel, and a
staff member sits in ex officio. Neither the hearing officer nor the chair is permitted to
have been involved with the investigation. Investigators would not be on the panel or act
as chair. The ex officio staff member manages the flow of the hearing, and determines
relevance of the evidence to be presented. During a hearing, complainants do not directly
confront the accused and the accused is not permitted to directly question the
complainant. The chair makes opening remarks, the complainant can make an opening
statement, and then the accused can make a statement. The Student Conduct packet
includes information about the written complaint, police report, interviews, and witness
14

The Code provides that a hearing quorum shall include no fewer than four voting members, including
two student members. The University informed OCR that students will no longer serve on Student
Conduct or Residential Life hearing boards in cases that involve sexual violence. This practice will be
consistent with OCR policy, which discourages recipients from allowing students to serve on hearing
boards in cases involving sexual violence. See OCR 2014 “Questions and Answers on Title IX and Sexual
Violence,” at n. 30.

 Page 17 – Dr. Michael V. Drake
statements. The hearing panel members all have a copy of the packet of the information
obtained during the investigation, as do the complainant and the accused. It is not given
to the complainant and accused to keep, but they can review it in advance of the
administrative hearing, and are provided a copy during the hearing. University witnesses
speak first, then the accused’s witnesses. While it is not the complainant’s burden to
prove his or her case as part of the hearing, the complainant is provided several
opportunities to speak during the hearing. The parties can ask questions of each other,
but only funneled through the chair, and they each can make closing remarks. The
complainant can also make an impact statement. The presence of the complainant is not
required, but University officials stated that they believe it weakens the case if he or she
is not present and there are no other witnesses. The University has made provisions for
complainants to attend conduct hearings via Video Teleconference (VTC).
During the investigation, Student Conduct maintains regular communication with the
parties to keep them informed of the process. Prior to the initiation of a hearing, there are
meetings with both the complainant and the accused to review the process and procedures
and share information. At the end of the process, both parties are informed of the
outcome in writing.
The Student Conduct process provides penalties ranging from informal reprimand to
dismissal. Conduct dismissals are permanent. There is no limit on the sanction range
(e.g., community service, writing a paper, meeting with officials). However, since
September 2013, almost all students found to have committed sexual misconduct have
been permanently dismissed. In some cases where dismissal is not an appropriate
penalty, the violator might meet with the SVES coordinator for appropriate training.
Based on interviews with University officials and the review of sexual assault complaint
files from the 2008-2009 and 2009-2010 academic years, OCR determined that, when a
complaint was filed with Student Conduct, the University usually completed the
investigation of the complaint within one quarter or 10 weeks. Timing depended in part
on witness availability. If the complaint was filed immediately before a summer or other
academic break, and, as a result, witnesses were not available, the complaint process
might take longer. The University also advised that the completion timeframe also
depended on whether the accused accepts responsibility or how the case will be heard.
Coordination with Law Enforcement. While there is no written protocol,
University officials indicated that there is strong coordination between University police
and Student Conduct regarding the handling of sexual harassment and sexual assault
complaints. This coordination is described in the Title IX Program Statement discussed
above.
All allegations of sexual assault are investigated by the University’s Department of
Public Safety, which includes the University police, to determine if criminal charges are
warranted. When University police receive information about any sexual assault, the
police forward that information to Student Conduct. In addition, in instances where
police receive complaints that have no criminal component (e.g., sexual harassment

 Page 18 – Dr. Michael V. Drake
complaints that do not involve violence), the police also refer the complaints to Student
Conduct. This process was confirmed through interviews with University officials
(although OCR noted that information on the campus police website indicates that it is
the responsibility of the students who report incidents of sexual assault to the campus
police to also report the incident to Student Conduct, University Housing, or SVES in the
Wellness Center). Student Conduct may encourage a complainant to report to the police
or may opt to file a third-party complaint with University police if the alleged conduct is
believed to be also a criminal matter within the University police’s jurisdiction. Police
tell students about resources and also share information with Student Advocacy, which
will reach out to students.
In cases where law enforcement does not pursue a criminal investigation, Student
Conduct still conducts Title IX investigations. The University is not guided by the
outcome of the police investigation. When there is an ongoing criminal investigation, the
police keep the appropriate University individuals updated on the status of the
investigation, for example by sharing the results of the preliminary investigation with
Student Conduct or HR. The University may coordinate timing of witness interviews
with the police. The University advised OCR that it continues with its Title IX
investigation to the extent that it does not interfere with the criminal investigation. The
University also explains on its website the difference between the criminal process and
the Student Conduct process.15 Both the Student Conduct Director and the Deputy Police
Chief indicated that they participate on the SVCT to ensure the correct entity has the case
and prevent cases from “falling through the cracks.” The Director of Student Conduct
gets SVCT reports on all matters referred to police.
OCR reviewed police reports provided by the University for complaints from the
2008-2009 and 2009-2010 academic years; however, most of the names of the accused
were blacked out and OCR was unable to determine whether incidents were referred to
Student Conduct. The documents confirmed that the police provided students with
sexual assault pamphlets and referrals for medical and counseling services.
Confidentiality. Both the “Victim’s Rights” and “Accused Rights” sections on
the Student Conduct website state that the University will make reasonable efforts to
protect confidentiality within the parameters of FERPA16 and the University Student
Conduct process, as described above. In addition, the Title IX website contains a specific
“Confidentiality” page, which states that the University is obligated to follow up on all
sexual harassment allegations and that in some situations “it may be necessary to reveal
the complainant’s identity to conduct an investigation.” Finally, the University’s policy
titled “Sexual Harassment by Students” states, “To the extent possible, all information
received in connection with the filing, investigation, and resolution of allegations will be
15

See http://studentconduct.osu.edu/page.asp?id=11 (“There are significant differences between the
campus conduct process and the criminal justice procedures. The processes are not mutually exclusive. A
student may be arrested and charged in the criminal justice system as well as under the Code.
Alternatively, charges can occur for alleged violations of the Code, which may not be violations of the
law.”)
16
Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; 34 C.F.R. Part 99.

 Page 19 – Dr. Michael V. Drake
treated as confidential except to the extent it is necessary to disclose particulars in the
course of the investigation or when compelled to do so by law. All individuals involved
in the process should observe the same standard of discretion and respect for the
reputation of everyone involved in the process.”
D. Response to Sexual Harassment/Violence Incidents
OCR reviewed eighty-seven sexual harassment files from 2008-2009 and 2009-2010.
These files consisted of files from the campus police, from Student Conduct, and the
Housing Office. While the files contain detailed information about the incidents giving
rise to the cases, they were often unclear or incomplete with regard to the completion of
the investigation, including any sanctions and/or interim and final remedies taken. In
many cases, the complainants declined to pursue charges; however, there was no
indication in the files that the University pursued further actions in the cases where the
accused could be identified. The files demonstrated that complainants were routinely
provided sexual assault resource and counseling information. Many of the files include
handwritten notes of investigators that were illegible and not transcribed into a legible
format; therefore, it was difficult to determine in some cases whether the University took
any action to address the incident. OCR’s investigation revealed that the University did
not always maintain complete records with regard to complaints that arose in student
housing. As such, OCR was unable to determine whether every complaint of sexual
harassment that arose in student housing and could possibly result in suspension or
dismissal was referred to Student Conduct. OCR also noted information in the files
indicating that the process took over 60 days in some cases without additional
explanation in the file as to the reason for the length of time.
The University also provided OCR with files for Title IX complaints filed with the
University since the creation of the new compliance office and the naming of the Title IX
Coordinator in September 2012. OCR’s review of these files, which included cases from
September 2012 to January 2014, noted a significant improvement in the University’s
documentation and recording of these investigations. The University uses a software
tracking system to track all Title IX investigations. The file review found that witnesses
were properly identified, located and interviewed, charges were clearly set forth and
findings were clearly identified, and both parties were notified of the outcome in writing.
These complaint files show that the University completed the majority of the
investigations and hearings within the 60 days, as is now required by the University’s
policies. For those that took longer than 60 days, the reporting of the incident and
investigation usually occurred at the beginning of, or during, a semester break or when
witnesses were not otherwise available for questioning.
OCR noted that in the more recent complaint files, almost all students found to have
committed sexual assault or engaged in non-consensual sex were permanently dismissed
from the University with no opportunity to reenroll in the future. The case files showed
that the University used interim measures such as moving the accused out of the
residence hall, immediate suspensions during an investigation, and no contact orders, and
offered complainants information for counseling services. OCR did find clear

 Page 20 – Dr. Michael V. Drake
documentation in the files regarding other remedies such as academic support. OCR
noted that in cases where the accused was found not to have violated the Code, the
University still imposed no contact orders. The files reviewed showed that both parties
received notices of appeals and opportunities to respond to an appeal.
On May 23, 2014, the University received a complaint against the Director of the
University’s Marching Band alleging that the Band's culture facilitated acts of sexual
harassment, creating a sexually hostile environment for students. The complaint cited a
culture that was “sexualized” and that its members were made to swear secrecy oaths
about objectionable traditions and customs. The University’s Marching Band has 225
members. The Band Members receive academic credit for their participation through the
College of Arts and Sciences. The University conducted an investigation of the matter
within 60 days, interviewing current students, alumni, and staff. The investigation found
a culture that included numerous objectionable, secret traditions, and misconduct
including excess alcohol consumption that contributed to a sexual assault. On July 22,
2014, the University issued a report regarding the investigation, in which the University
concluded that there was a sexually hostile environment for students in the Marching
Band and that the Band’s Director “failed to eliminate the sexual harassment, prevent its
recurrence and address its effects.”17 Additionally, the University concluded that the
Marching Band's Director, knew or reasonably should have known about this culture but
failed to eliminate the sexual harassment, prevent its recurrence, and address its effects.
The University announced a number of steps that it was committing to take in response
that include evaluating and strengthening the Marching Band leadership, revisions to
policies and procedures, counseling and training for students and staff and climate
surveys and controls. The University also issued the following statement on “Ohio State
Marching Band Culture,” which is posted on the band’s website and includes remarks
from you, as President of the University, stating:
The Ohio State University takes very seriously its responsibility to provide a
world class education, which is enriched by a positive campus culture, diverse
academic experience and opportunities for personal growth. Those responsibilities
are built on the University's core values of integrity, personal accountability,
openness and trust.
While the Ohio State Marching Band has embraced a tradition of excellence and
become a source of enormous pride for the entire Buckeye family, a recent review
of the Marching Band culture and practices revealed conduct by members of the
band and staff that is inconsistent with the University's values and Title IX
requirements.
A thorough investigation by the Office of University Compliance over the past
two months revealed serious cultural issues and an environment conducive to
sexual harassment within the Marching Band. In addition, the investigation
17

While the finding was limited to sexual harassment, OCR notes that the University's report states that
sexual assault allegations were also made.

 Page 21 – Dr. Michael V. Drake
determined that Director Waters was aware or reasonably should have known
about this culture but failed to eliminate it, prevent its recurrence and address its
effects.
Jon Waters has been terminated from his position as Director of the Marching
Band.
‘Nothing is more important than the safety of our students,’ said The Ohio State
University President Michael Drake. ‘We expect every member of our community
to live up to a common standard of decency and mutual respect and to adhere to
university policies.
Moving forward, we must abide by a zero tolerance policy at the University—
both with the Marching Band and the entire campus community—for any
behavior that creates a hostile culture at Ohio State. I view this as a new day and
an opportunity for the Ohio State community to come together and embrace the
values and behavior that have made this University great.’
In addition to changing the leadership of the Marching Band, the University
immediately has taken additional steps to ensure that change is swift and
impactful. This begins with the appointment of Betty Montgomery, former Ohio
Attorney General, to lead an independent task force, reporting directly to
President Drake and the Chairman of the Board of Trustees, to review this matter
in its entirety. . .
At this time, the Ohio State Marching Band season will continue under new
leadership and steps are being taken to swiftly identify an interim band director.
Additional training and guidance will be developed with new band leadership to
create a proper culture, and nurturing environment.
E. Training/Outreach and Student/Climate Information
OCR’s investigation revealed that the University has provided training for University
officials responsible for handling the University’s compliance with Title IX, the former
Title IX Coordinator, the SJA Director and the HR Compliance Manager. The training
addressed the investigation of complaints of sexual harassment and sexual assault. In
addition, HR has provided regular ongoing training offered for faculty and staff, and they
often call on SVES to present at these trainings. The former SJA Director stated that she
trained the Student Conduct hearing officers, who also receive training at national
conferences and academies. The hearing officers also receive annual training from
SVES, which covers the dynamics of sexual harassment and assault, power differences,
consent, alcohol and drugs, consent and coercion, defenses that the accused may use, rape
myths, the impact of rape trauma syndrome on memory, and power and privilege issues.

 Page 22 – Dr. Michael V. Drake
The University police have received sexual harassment training through HR. The Police
Chief also trains security officers at the local hospital, which includes sexual harassment
training and explaining the difference between sexual harassment and sex crimes. The
Chief is also a member of a core group of individuals at the University who provide
sexual harassment training at the University. In addition, many of the University police
officers have gone through sexual assault training provided through the Sexual Assault
Response Network of Central Ohio (SARNCO).
In 2011, some of the RAs who responded to OCR’s request for information stated that
they had not received any training that specifically referenced Title IX. However, a
majority of RAs did respond that they had received some training by the University
regarding sexual harassment. Most of the responses indicated that RAs were trained prior
to the beginning of the school year through a program called “Behind Closed Doors.”
This program included role-playing situations and discussed the emotional needs for
students subjected to sexual harassment/assault. Generally, most RAs responded that the
training taught them to report incidents of sexual harassment/assault to their supervisor.
In March 2012, the University provided OCR with Title IX training materials that were
used to train residence hall staff for the 2011-2012 school year. Specifically, the
University provided OCR with copies of pre- and post-tests administered to Resident
Advisors and Resident Managers; PowerPoint presentations used for the Resident
Advisor training, Resident Manager training, and the hourly office assistant trainings; and
a list of the Office Assistants that had been trained from desk staff across the residence
halls. The training made clear the connection between Title IX and sexual
harassment/sexual assault and it provided the residence hall staff with a number of
resources to which to direct students; however, because the University had not yet named
an official Title IX Coordinator at the time, the materials did not identify any person
designated as the Title IX Coordinator.
Since September 2012, the Title IX Coordinator has been responsible for training
members of the University community and providing broader oversight for training
initiatives by other areas that play a key role in the University’s Title IX programs and
processes, such as Residence Life.
In addition, during orientation for new students, the University created a website that
includes a section titled “Alcohol and Sexual Violence” that provides an introductory
video advocating bystander intervention. This section of the orientation website also
includes links to resources regarding bystander intervention, counseling and student
health services, and sexual violence. In addition, links are provided to direct students to
the Sexual Violence Education and Support (SVES) at the Wellness Center, the Student
Advocacy Center, and Student Conduct.18 Furthermore, on the Student Wellness
Center’s website, under the “Sexual Violence” section, there is a page with a list of seven
presentations addressing sexual assault and related issues, such as the relationship
between alcohol and sex, consent, myths of sexual violence, and bystander intervention.19

18
19

See http://studentlife.osu.edu/orientation/.
See http://swc.osu.edu/sexual-violence/presentations-for-sexual-violence-education-support.

 Page 23 – Dr. Michael V. Drake
These presentations can be requested through the Student Wellness Center. The majority
of students interviewed by OCR in 2011 consistently identified the Student Wellness
Center as a helpful resource.
The University’s Assessment of Climate
The University stated that it regularly assesses campus climate with regard to sexual
harassment and related issues, and added that the University’s Center for the Study of
Student Life conducts ongoing climate surveys, which touch on many areas pertinent to
Title IX.20 One survey from September 2012 assessed topics of general health, healthrelated impediments to academic performance, relationships, alcohol and other drug use,
sexual behavior, nutrition, exercise, mental health, and sleep. This survey asked students
if they had sex with someone without giving the other person their consent (1.9%
responded they did), or if they had sex with someone without getting the other person’s
consent (1.3%). Another survey from August 2011 (findings from 2009) about sexual
behavior, but this survey did not include questions about sexual harassment/assault,
consent, or other related issues.
Analysis and Conclusions


Title IX Coordinator (34 C.F.R. §§ 106.8 and 106.9(a))

OCR’s investigation determined that the University has designated a Title IX Coordinator
and named three Deputy Coordinators, and it has provided their names and contact
information in multiple locations on the University’s website. Prior to the completion of
OCR’s investigation of the training provided to the current Title IX Coordinator and
Deputy Coordinators, OCR entered the Agreement with OSU, which requires the
University to provide adequate training to the Coordinators on what constitutes sexual
harassment, including sexual assault, and that they understand how the recipient’s
grievance procedures operate.


Notice of Non-Discrimination (34 C.F.R. § 106.9)

The University’s previous notice of nondiscrimination did not fully meet the
requirements of 34 C.F.R. § 106.9 in that, although some of the colleges within the
University had individual notices, not all of the colleges had individual notices and OSU
did not have a general notice that applied to all of the colleges within the University.
During the review, the University established a University-wide notice of
nondiscrimination that covers sex discrimination, includes contact information for its
Title IX Coordinator, and has been broadly disseminated and posted, and the notice
therefore meets the Title IX requirements. Based on the information obtained, OCR finds
that the University is currently in compliance with the Title IX requirement at 34 C.F.R.
§ 106.9 regarding its notice of nondiscrimination.21
20

See http://cssl.osu.edu/.
OCR noted that the University’s other notices of nondiscrimination were inconsistent with respect to
references to other statutes enforced by OCR, including 34 C.F.R. § 100.6(d), 34 C.F.R. § 104.8, 34 C.F.R.
21

 Page 24 – Dr. Michael V. Drake


Sexual Harassment Policies and Procedures and Responses (34 C.F.R. §§
106.8(b) and 106.31)

OCR found that the policies and procedures in place at the start of OCR’s review in 2010
did not comply with Title IX in several respects, including that the policies and
procedures did not designate reasonable timeframes for the major stages of the process
and, in using Code of Student Conduct as its grievance process for student complaints of
sexual harassment, the University did not ensure that the complainant was provided an
equal opportunity to participate in the grievance process. Information obtained in OCR’s
investigation revealed that students, including RAs, were confused as to the process on
how to report sexual harassment.
OCR’s investigation revealed that, during the course of the review, OSU undertook a
number of steps to improve its efforts to prevent and respond to sexual harassment,
including establishing a new centralized “Office of University Compliance and
Integrity,” which addresses Title IX compliance; creating a “one-stop shop” Title IX
webpage for information about Title IX and sex discrimination; and forming its “Sexual
Assault Consultation Team” to discuss and ensure coordination in the University’s
response to all sexual assault complaints; and developing on-line training modules for
students on bystander intervention.
OCR’s review of the University’s current policies found that the University has published
five sets of policies and procedures relating to sexual harassment and sexual assault,
including the Student Code, Sexual Harassment Policy Guidelines (for students in the
non-employment context) and several HR policies. These are all linked to the “one-stop
shop” discussed above and are also located on other University websites.
The University’s current sexual harassment policies and procedures are easily located and
widely distributed. However, the policies and procedures continue to be confusing due to
inconsistent definitions and omissions from version to version. For example, it is not
sufficiently clear which listed policy would apply to which type of complaint, and the
descriptions overlap in some instances (e.g., “Sexual Harassment by Students in the NonEmployment Context” is described as applying to sexual harassment in the work and
study context, as is HR Policy 1.15 titled “Sexual Harassment Policy.”) Some additional
examples of inconsistencies are that the “Victim’s Rights” page states that this process
will be timely and thorough, and barring foreseen circumstances, will be completed
within 60 days. The “Accused Rights” page only states that the process will be “timely
and thorough.” The notice to the parties is outlined in the “Victim’s Rights” and
“Accused Rights” sections; however, it does not state that it will be in writing.
With respect to the application of the procedure to complaints alleging discrimination and
harassment carried out by employees, other students, or third parties, OCR found that the
University’s procedures do not comply with Title IX requirement that grievance
procedures apply to third parties. The University’s description of its Sexual Harassment
§ 110.25, and 28 C.F.R. § 35.106. OCR has provided technical assistance to OSU on revising these nonTitle IX nondiscrimination notices.

 Page 25 – Dr. Michael V. Drake
Policy on the Title IX website states that it applies to students, employees, vendors,
contractors, volunteers, and “third parties acting as agents for the university.” The
applicable sexual harassment HR policies do not state that they apply to third parties. In
addition, the University’s Title IX website states that conduct alleged to constitute
harassment is evaluated from the perspective of a reasonable person. Under OCR policy,
in determining whether a hostile environment has been created, the conduct in question
must be considered from both a subjective and an objective perspective of a reasonable
person in the alleged victim’s position, considering all the circumstances.
With one exception, the University’s policies and procedures provide for adequate,
reliable, and impartial investigation of complaints, including equal opportunity for both
the complainant and respondent to present witnesses and other evidence and to otherwise
participate in the grievance process. The exception is that the University’s procedures
inappropriately suggest and, in some instances, seem to require that parties work out
alleged sexual harassment directly with the accused harasser prior to filing a complaint
with the University. With respect to student peer harassment, the Policy Guidelines
recommend that in “simple situations” (a term that is not defined), the complainant
should talk to the responsible party or seek to resolve the situation. If the situation is not
resolved, then the complainant should contact Student Conduct. The HR Guidelines state
that the individual should talk with the responsible party or seek to resolve the situation
in consultation with the supervisor and/or college or unit HR professional and indicate
that only if this step is taken and the issue is not resolved may the individual file a
complaint.
The procedures do comply with Title IX requirements in stating the standard for review,
specifically that the preponderance of the evidence standard will be used for investigating
allegations of sexual harassment or assault. The procedures also allow the parties access
to information used at a hearing and provide similar and timely access to both parties;
and properly notify the complainant of the right to proceed with a criminal investigation
and a Title IX complaint simultaneously.
With respect to the requirement for designated and reasonably prompt timeframes for the
major stages of the complaint process, the University’s procedures are not in compliance
with Title IX. The HR 1.15 policy states only that the process will be completed within a
“reasonable timeframe.” OCR also noted the following inconsistencies between the
policies relating to timeframes. The Student Conduct procedures, in the section entitled
“Title IX Compliance,” state that both the complainant and the accused are provided five
days for filing an appeal. In the section entitled “Victim’s Rights,” the five-day’
timeframe is again clearly described. This specificity is omitted from the “Accused
Rights” page.
With respect to written notice to both parties of the outcome of the complaint and any
appeal, OCR noted that HR 1.15 is silent regarding the University’s obligation to provide
written notice of the outcome of complaints to both parties; however, this requirement is
described in the Code of Conduct.

 Page 26 – Dr. Michael V. Drake
With respect to providing assurance that the recipient will take steps to prevent
recurrence of any sex discrimination or harassment found to have occurred, and to correct
its discriminatory effects on the complainant and others, if appropriate, OCR noted that
this language was included in many of the policies. Multiple documents state that the
University has a compelling interest in taking steps to prevent recurrence of any sex
discrimination or harassment found to have occurred, and to correct its discriminatory
effects on the complainant and others, if appropriate. Information is provided to
complainants about sources of counselling, advocacy and other support.
In addition, OCR’s review of the files from hearings revealed that the University does
maintain documentation of the proceedings; does not appear to allow conflicts of interest
by those handling the procedures; and informs students at regular intervals of the status of
the investigation. The University also outlines steps available to protect the complainant
as necessary, including interim steps before the final outcome of the recipient’s
investigation (e.g., no contact order; change in academic or living situations as
appropriate; counseling; health and mental services; escort services). The University
also provides specifics regarding academic support and the ability to retake a course or
withdraw without penalty, although as noted above, OCR did not find documentation of
these types of remedies being offered in the files that it reviewed.
The Code covers a range of sanctions that can be levied against the accused. Sanctions
include a formal written letter of reprimand, disciplinary probation, suspension, and
dismissal. The Code outlines other sanctions as well that can be imposed by a hearing
officer or board in conjunction with the above sanctions such as reassignment of rooms,
restriction of access to campus locations, community service, and referral to counseling.
OCR’s review of the files found a range of sanctions imposed, including dismissal from
the University.
The University has clear guidelines for addressing confidentiality for the complainant
(although OCR recommends that the University specifically identify the employee who
will be responsible for evaluating requests for confidentiality), and OCR’s review of file
documentation relating to the hearings suggest that the University disallows evidence of
past relationships. Some policies also make clear that this evidence is disallowed. Some
but not all of the University’s procedures contain a section prohibiting retaliatory
harassment. The University policies do not suggest that sexual assault complaints be
mediated; however, the policies do not explicitly state that sexual assault complaints are
not to be mediated even on a voluntary basis.
Based on its review of the University’s current policies and procedures, OCR has
determined that, while the University has made substantial improvements in its written
policies and procedures, the current policies and procedures do not comply with Title IX.
The critical deficiencies, as described, are that the policies do not apply to all third
parties, that the policies include an inappropriate definition of sexual harassment that
does not include a subjective (as well as objective) perspective, and that the policies do
not uniformly include designated and reasonable timeframes for the major stages of the
grievance process.

 Page 27 – Dr. Michael V. Drake
As noted above, the University requested to resolve this review with a voluntary
resolution agreement prior to the completion of OCR’s investigation of all the issues in
the review.
As such, OCR is not making a compliance determination under Title IX regarding
whether the University’s implementation of its policies and procedures complies with the
Title IX requirements for prompt and equitable resolution of sexual assault complaints.
With respect to whether the University provided prompt and equitable responses to the
sexual harassment complaints reviewed by OCR, OCR identified some deficiencies in
our file reviews from 2008-2009 and 2009-2010, including incomplete information about
the interim and final remedies taken and final outcomes/determination for cases, and
information suggesting that the University did not pursue the Title IX investigation if the
complainant did not want to pursue the complaint. OCR found that the complaint files
reviewed earlier in its investigation did not include sufficient documentation to make a
Title IX compliance determination as to whether the University provided prompt and
equitable responses to the complaints OCR reviewed.
OCR reviewed files for complaints filed in the 2012-2013 academic year to January 2014
because they were generated after the University created a centralized compliance office
and revised its policies and procedures. OCR found that the more recent complaint files
included more complete documentation of the information considered by the University
and steps it had taken in investigating the complaints. The files do not have a full
documentation of the range of any interim and final remedies provided to complainants
but did have documentation of the full range of sanctions imposed on accused students.
Also, the University conducted an investigation of alleged sexual harassment within its
Marching Band and found that there was a sexually hostile environment for students in
the Marching Band of which the University had notice and failed to adequately address.
On September 8, 2014, the University agreed to implement the enclosed Agreement.
When fully implemented, the Agreement entered into by the University will resolve the
above-cited Title IX compliance issues. The agreement requires that OSU address sexual
assault and sexual harassment on its campuses in a prompt and equitable manner,
including by taking effective steps to stop sexual harassment, prevent its recurrence,
eliminate any hostile environment, and remedy its discriminatory effects on the
complainant and any others as appropriate. Specifically the University will take the
following actions:
Under the terms of the Agreement, the University will:
1.

Develop a statement of the roles and responsibilities and mandatory
training requirements for its Title IX Coordinator.

2.

Disseminate information to ensure students and staff members are aware
of Title IX’s prohibition against sexual assault and sexual harassment,
including how to recognize it when it occurs, and how to report incidents.

 Page 28 – Dr. Michael V. Drake
3.

Revise its policies and procedures to provide a clear and internally
consistent grievance procedure that ensures prompt and equitable
resolution of sexual assault and harassment allegations and does not
require students to work out sexual harassment complaints directly with
the accused.

4.

Provide timely and effective interim relief for complainants, including
academic adjustments, housing changes, counseling, and health and
mental services, as necessary, and document this relief in investigative
files; the Title IX Coordinator or other specifically designated University
employee will coordinate the provision of interim measures so that
complainants are not required to arrange such measures by themselves
through multiple University departments and offices and the University
must the burden on the complainant in providing the interim relief;

5.

Provide mandatory sexual assault and harassment training to all members
of the university community – including students, faculty, administrators
and university police.

6.

Conduct annual climate checks with students to assess the effectiveness of
steps taken, pursuant to the agreement, or otherwise, to achieve its goal of
a campus free of sexual harassment, in particular sexual assault.

7.

Establish a campus focus group consisting of representative leaders from
the student community (e.g., women’s groups, athletes, residential
assistants, student government leaders, fraternity and sorority leaders, etc.)
and University officials to provide input regarding strategies for ensuring
that students understand their rights under Title IX, how to report possible
violations of Title IX, and the University’s obligation to promptly and
equitably respond to Title IX complaints.

8.

Review the files of reports made of sexual harassment/assault during and
since academic year 2011-2012, to determine whether the University
investigated each complaint appropriately under Title IX. The University
will take appropriate action to address any problems identified in the
manner in which these complaints were handled, including providing
appropriate remedies that may still be available for the complainants, such
as counseling or academic adjustments.

9.

Maintain comprehensive documentation of its receipt, investigation, and
resolution of all oral and written complaints, reports or other notice of
sexual harassment, including any interim measures provided to
complainants pending the completion of an investigation and, where
sexual harassment is found to occur, documentation fully detailing all of
the steps, individual and systematic, taken by OSU.

 Page 29 – Dr. Michael V. Drake
10.

Implement the University’s recommendations and corrective actions from
its investigative report pertaining to the Marching Band, which have been
specifically incorporated into the Agreement. Submit to OCR for review
and approval (1) its proposed timetable for implementing the steps
outlined in the report and any additional proposed recommendations and
findings, and (2) the specific individual remedies that OSU proposes to
provide to individual band members subjected to the sexually hostile
environment, including the basis and timetable for providing the remedies.

OCR will monitor the University's implementation of the Agreement. As stated in the
Agreement, if the University fails to implement the Agreement, OCR may initiate
administrative enforcement or judicial proceedings to enforce the specific terms and
obligations of the Agreement. Before initiating administrative enforcement (34 C.F.R.
§§ 100.9, 100.10), or judicial proceedings to enforce the Agreement, OCR shall give the
University written notice of the alleged breach and a minimum of 60 calendar days to
cure the alleged breach. Please be advised that the University may not harass, coerce,
intimidate, or discriminate against any individual because he or she has participated in an
OCR investigation. If this happens, the harmed individual may file a complaint alleging
such treatment.
We appreciate the University’s cooperation during OCR’s compliance review and
resolution of this complaint. If you have any questions regarding resolution of this
compliance review, please contact Kelly Marie Johnson, Team Leader, at 216-522-2675
or by email at Kelly.M.Johnson@ed.gov. The OCR staff person responsible for the
monitoring of the University’s implementation of the agreement is Erin Barker Brown,
OCR Attorney, who can be reached at 216-522-4978 or at Erin.Barker-Brown@ed.gov.
Should you choose to submit future monitoring reports electronically, please send them
to OCRCleMonitoringReports@ed.gov.
Sincerely,
/s/
Meena Morey Chandra
Regional Director
Enclosure
cc:

Christopher M. Culley
Senior Vice President and General Counsel