STATES DEPARTHIENT 017 XI FFICE FOR CIVIL RIGHTS L'MtUtJan SE JUTH .INA turn MARYLAND sw DC strain-1475 Ut- April 6, 2015 General J.H. Bintord Peav Ill, Superintendent Virginia Military Institute 201 Smith Hall Lexington, Virginia 24450 RE: OCR Complaint No. 11?14-2311 Letter of Findings Dear General Peay: This ietter advises you of the outcome of our investigation of a complaint received by the Office for Civil Rights (OCR) of the US. Department of Education {the Department), against Virginia Military Institute (VMIJ on July 16, 2014. The complaint was filed under Title IX of the Education Amendments of 1972 (Title IX). 20 U.S.C. 1681 e_t E. The Compiainant, a VMI cadet, alleged that VMI: 1) discriminated against her on the basis of sex when it failed to respond appropriately to her grievance of alleged sexual assaul lime)? I and 2} retaliated aainst her after she filed a I rievance by {bit?ttbitrtci land whe (memento) (blt?i; {bit?m?) I OCR investigated the complaint allegations pursuant to its authority underthe Title ix regulation, 34 C.F.R. Part 106, which prohibits discrimination on the basis of sex in educational programs and activities receiving federal financial assistance from the Department, The laws enforced by OCR also prohibit retaliation against any individual who asserts rights or privileges under these laws or who files a complaint, testifies, or participates in an OCR proceeding. Because VME receives financial assistance from the Department, it is subject to the provisions of Title Di and its impiementing regulation. During the investigation, OCR reviewed documentation provided by VMI and the Complainant and conducted teiephone interviews of witnesses. In analyzing the allegations, OCR reviewed the evidence under a preponderance of the evidence standard, meaning that OCR evaluated the evidence to determine whether it is more likely than not that VMI failed to comply with the laws enforced by OCR. For the reasons set forth below, OCR found insufficient evidence to support the allegations in this complaint. The Di?p?rilitt??f of '3 ??ssion is to strident rti'hiiriri'imz'ut muf Irv't'p?mtimt?ir girder! byfostcriug Educational! and ensuring Squirt access. irreducdgoo Page 1 of 9 Page 2 of 9 OCR Complaint #11-14-2311 LOF Applicable Regulatory Standards The Title IX implementing regulation, at 34 C.F.R. provides that no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance. Speci?c obligations are set forth at 106.3103). including a recipient's obligation to ensure that its students are not denied or limited in their ability to participate in or benefit from the recipient's programs or activities on the basis of sex. Under Title IX, colleges and universities that receive Federal ?nancial 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 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 bene?t from the recipient's program.1 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, 1frequency, 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 The applicable legal standards described herein are more fully discussed in OCR's 2011 Dear Colleague letter on Sexual Violence, which is available at; 201104html (April 4, 2011); for further clarification on this topic, see "Questions and Answers on Title ix and Sexual Violence.? at (April 29. 2014). See also OCR's 2010 Dear Colleague letter on Harassment and Bullying, which is available at (October 26, 2010), and OCR's Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students. or Third Parties. at {January 19, 2001}. Page 2 of 9 Page 3 of 9 OCR Complaint #11-14-2311 LOF 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 recipienth failure to respond and appropriately. A recipient?s obligation to respond appropriately to sexual harassment complaints is the same regardless of the sex or sexes of the parties involved. Title IX recluires a school to protect the complainant2 and ensure his or her safety as necessary. including taking interim steps before the final outcome of any investigation. Title IX requires a recipient to take steps to ensure equal access to its education programs and activities and protect the complainant as necessary. including taking interim measures before the final outcome of an investigation. The recipient should take these steps once it has notice of a sexual violence allegation and should provide the complainant with periodic updates on the status of the investigation. The recipient also should ensure that the complainant is aware of his or her Title iX rights and any available resources. such as victim advocacy groups. housing assistance. academic support. counseling. health and mental health services. and legal assistance. In situations where reported sexual harassment may constitute a criminal act. a recipient should notify a complainant 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 lX investigation. Police investigations may be useful for factdgathering; but because the standards for criminal investigations are different. police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have suf?cient evidence of a criminal violation. In addition. a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints and equitably. Recipients should not wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title 1X investigation and. if needed, must take immediate steps to protect the complainant in the educational setting. Any agreement or Memorandum of Understanding with a local police department must allow the school to meet its Title IX obligation to resolve complaints and equitably. Although a school may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence. once notified that the police department has completed its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges}. the school must resume and complete its fact-finding for the Title IX investigation. OCR recognizes that the length of time for evidence gathering by criminal investigators will vary depending on the specific circumstances of each case. 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 2 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 3 of 9 Page 4 of 9 OCR Complaint #1 1-14-2311 LOF 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 106.?1, incorporates by reference the procedural provisions of Titie VI of the Civil Rights Act of 1964, at 34 CPR. which include a prohibition against retaliation because a person complained about discrimination or otherwise asserted rights under these laws. Facts (blt?l; On the Comptainant's called Inspector General (the designated Title IX r_ in ort the the Complainant told him she had been sexually assaulted by aniblim {Dime} the night of the alleged when tbi{6i; {bit?tic) the Complainant. After the sail, the Inspector General emailed the Complainant and requested a meeting for that same afternoon. When they met, the Inspector General asked the Complainant if she wanted to have a representative present at their meeting, but she declined. He advised the Complainant about a local victim advocacy agency and made an appointment for her for the next day; VMI provided transportation for the Complainant to the advocacy agency. The Inspector General offered VMl?s counselino services to the Complainant, which she declined {bits}? {mine} On mm? the Compiainant'sW provided to VMI a written statement setting forth the same information that he shared with the Inspector General during their telephone call {biti?tci On the same da the Insector General met again with the Complainant. who orally confirmelbliei? (WW3) written account of the sexual assault, with the exception of a sentence that said she cried for three hours a (bite); (bit? libiisii I The statement indicated that, We); Itblt?i; took the Complainant tbl(6i; tbitrtci ibii5iitbl identifiedl?isjiiw'm Iwho alte ediy committed the sexual assault and Betwee {bit?t {bitrtci the Inspector General contacted the Uomlainant severe needed any further assistance. 0 the Inspector General coordinated a room change for Complainant at her request. The Inspector Genera! also contacted Complainant'smm {mam to report on the status of VMl?s Title IX investigation. Page 4 of 9 Page 5 of 9 OCR Complaint #11-14-2311 LOF {bl{51;tbl{T{CJ (blt?l; {bititcl Itblt?l; (WINES) bite); Although she was given the opportunity to do so by the Inspector enera, ornplainant did not provide the Inspector General the names of any witnesses or any further details about the alleged sexual assault. Nevertheless. the Inspecto?eommhvestioation included as well as othermm; and tbl(6l; (bimci Iwhere the Complainant indicatedltbilsl? (WE) {bl{5l; {bititcl (b]{6ji{bmm Ithe Inspector General concluded his investigation of the Complainant's sexual assault allegation. Elmira); (were) I Irma); I Page 5 of 9 Page 6 of 9 OCR Complaint #1 1-14-2311 LOF finding that a violation of VMis sexual harassment and sexual assault policies did not occur. The Superintendent reviewed the investigative report a concurred in the finding, 6; . after which the inspector Gen 6 - plainant and the{ written notice of the ?nding and nailed it it it i i to report the results onlibii?i? strict (bits); Analysis? Aiiegation 1: discriminated against the Complainant on the basis of sex when )to respond appropriately to her grievance of aiieged sexuai assent OCR found that VMl?s response to the alleged sexual assault was prompt. The inspector General {bit?t {bititci assault Immum?m provided interim measures to protect the Complainant, and the Inspector Generai maintained periodic contact with the Comoiainant and (bits): nitric) concerning the status of the investigation Hamming) I {bit?t nitricWW6) land, during the Investigation. informed the Complainant and the accused ibiisi {Wig of their right to provide the names of witnesses and other evidence in su ort of the complaint. The Inspector General concluded his investigation draw and determined, by a preponderance of the evidence, that a violation of VMl's sexoal harassment and sexual assault poiicies did not occur. After the Superintendent concurred in the determination, the Inspector General issued a written notice of the finding to the Complainant and to thelibii?i; lonli?ifei? I {biti?t (bi in addition, as required by Title ix, VMI provided the Complainant appropriate interim measures during its investigation of the sexual assault allegation and maintained periodic contact with the Complainant and ?limit? about the status of the investigation. To ensure the atso of the VMI community, after VMI identi?ed the {Wit ?Dim VMI libii?i: {bitiici lwithin two days of receivinglibii?ii written statement. The inspector General granted the Complainant?s request for a room change on 2014. He contacted the Complainant by e-mail on to assess ow was and to offer additional support. Vivil also granted the req {bititci I The inspector General gave the Complainant opportunities to present witnesses and relevant evidence during the investigation, and applied the correct standard of proof We note that OCR reviewed and approved revisions to Titie policies and procedures [General Order 15, Discrimination, Harassment. Sexuai Misconduct. and Retaliation Policy) pursuant to the resolution of a prior complaint Complaint #11-08e2079}. Page 6 of 9 Page of 9 OCR Complaint #1 1-14-2311 LOF preponderance of the evidence in making its investigative findings. Both the Complainant and the accused were notified in writing of the outcome of the investigation. In light of the foregoing, OCR finds that there is insufficient evidence to support the allegation that Will failed to res oond appropriately to the grievance of aileged sexual assault by Itblt?l; {bititm Complair I It fit r' nee . and when (blt?l: {bititcl {bititcl When analyzing a ciaim of retaliation, OCR determines: 1) whether the complainant engaged in a protected activity filed a complaint or asserted a right under a law enforced by OCR): 2) whether the school took a materially adverse action against the complainant; and 3) whether there is some evidence that the school took the adverse action as a result of the complainant?s protected activity. If all these elements are present. this establishes an initial or prime facie case of retaliation. OCR then determines whether the school has a legitimate, non-retaliatory reason for its action. Finaliy, OCR examines whether the schooi?s reason for its action is a pretext or excuse for unlawful retaliation. The Complainant engaged in a protected activity when filed a sexual assault comtaint with the VMI inspector General and she corroborated the allegation on Next, OCR examined whether VMI took materiain adverse actions against the Complainant that were causally connected to her protected activity. For an action to be materially adverse, it must cause lasting and tangible harm or reasonably have a deterrent effect on future protected activigi; mere unpleasant or transient incidents usually it? are not considered adverse. In put the Complainant'sl?m?i {Wig (bits); continues pending final resolution of all the Complainant's {blisjiibmcj tb1(6l; (bititcl he a materially adverse action. That this action occurred after the Complainant's protected activity could suggest a causal connection. VMI asserted legitimate, non-retaliatory reasons for putting the Complainant' {bite}: VMl's academic regulations reduire cadetslibiisii (blt?l; {bititcl (bite; exact Ithe Complainant had not vet (sync) "(blt?t {bititcl (blt?l; {bititcl {bitiici permitted the complainantiibitei; nitric: I10 meet ese requrrements while the Title IX investigation was ongoing. The Complainant received ibii6t {bitiici Nevertheless, after the Complainant satisfied academic (bit??Ci the Complainant?s conduct was, and still is, in question as all {bit?tic) Page 7 O_f_9 Page 8 of 9 OCR Complaint #11-14-2311 LOF OCR found no evidence of pretext in VMl's putting the Complainant?sltbii?i; {bititci With regard to the requirement for lbii53? {bititci IVMI treated the Complainant similarly to other cadet5 lbi{6i; {bitiiCi I {Wig Within the past three Vears, there have been two other cadets who compieteo ac' demic requirements (?mg I Itblt?i; {biti'tCi (alt3it5i; (bitftci I in one situation. and Itbit?i: {bifftci in the other); neither of these cadets had filed any complaints with VMI. Moreover, no cadets have been allowed hile a libit?i; in addition. with regard to academic requirements, permitted the I Furthermore. permitted {blt51;tbi(TtCi {bititCi {bititCi this was more favorable to the Complainant than VMl's usual practice when this); {more the Complainant forltbitl?i; (more) mm) Ia materially adverse action. That this action occurred after the Compiainant?s protected activity could suggest a causal connection. - . . . s: VMI asserted a legitimate. non-retaliatorv reason for this actionii libit?l; (bl'thCl Further, OCR found no evidence of pretext in thelimib?? I had {bititci Ibelieved indicated that the Complainant was the libit?ii (bit?tic) I but 0 ca the IVMI did not {bil?iilmim EEI'iBiitbiti luntil her Title iX investigation was completed. Thus. although the Complainant wa Iafter she raised the sexual assault ailegation, th libii?iit?ititci land had already identified the Comlaina nt as lbit?ii {bitftci The timing of these events suggests that the ultimatthe Complainant was no a pretext for retaliation. Additionally, OCR reviewed files showing that libiisii {bit??Ci nineteen other cadets within the past three ears for similar kinds O?ibiisi? ?339033 and none of these other cadetshad flied any complaints with Vlvli. Based on the above analyses. OCR ?nds that there is insufficient evidence to suport the allegation that VMi?s treatment of the Complainant with regard to was in retaliation for the sexual assault complaint filed with VMI. Conclusion This concludes investigation of this complaint. This letter should not be interpreted to address VMl?s compliance with any other reguiatory provision or to address any issues other than those addressed in this letter. This letter sets forth OCR's determinations in an individual OCR case. This letter is not a formal statement of OCR policy and should not be relied upon, cited. or construed as such. OCR's formal poiicv statements are approved by a duly authorized OCR official and made available to the Page 8 of 9 Page 9 of 9 OCR Complaint #11-14-2311 LOF public. Complainants may have the right to file a private suit in federal court whether or not OCR finds a violation. Please be advised that VMI may not retaliate against an individual who asserts a right or privilege under a law enforced by OCR or who files a complaint, testifies, or participates in an OCR proceeding, if this happens, the individual may file a retaliation complaint with OCR. Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request, if OCR receives such a request. we will seek to protect personally identifiable information that could reasonably be expected to constitute an unwarranted invasion of personai privacy if released, to the extent provided by law. We appreciate the cooperation that VMI extended to OCR during this investigation. It you have any questions, please contact one of the OCR attorneys assigned to the case, either Amy Williams at (202) 4536933 or via email at AmmWilliamsZC?ledoov, or Kristi Bleyer at (202) 4536901 or via email at Kristi.Blever@ed.oov. Sincerely. 45in Alessandro Terenzoni Team Leader, Team ii District of Columbia Office Office for Civil Rights cc: M. Elizabeth Griffin, Senior Assistant Attorney General, Education Section (via email) Eageg on