UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
500 WEST MADISON ST., SUITE 1475
CHICAGO, IL 60661-4544

REGION V
ILLINOIS
INDIANA
IOWA
MINNESOTA
NORTH DAKOTA
WISCONSIN

July 7, 2016
Dr. Steven Shirley
President
Minot State University
500 University Avenue West
Minot, North Dakota 58707
Re: OCR #05-14-2061
Dear President Shirley:
This letter is to inform you that the U.S. Department of Education (Department), Office for Civil
Rights (OCR) has completed its investigation of the above-referenced complaint filed with OCR
against Minot State University (University), alleging discrimination on the basis of sex.
The Complainant (Student A) alleges that the University discriminated against her on the basis of
sex. The complaint raises whether the University fails to promptly and equitably respond to
complaints, reports and/or incidents of sexual violence of which it had notice, including Student
A’s report in April 2013 of sexual assault committed against her by a University employee. 1
OCR is responsible for enforcing Title IX of the Education Amendments of 1972 (Title IX), 20
U.S.C. § 1681, and its implementing regulation, 34 C.F.R. Part 106, which prohibit
discrimination on the basis of sex. As a recipient of Federal financial assistance from the
Department, the University is subject to Title IX.
During the complaint investigation, OCR reviewed documentation provided by the Complainant
and the University, including relevant University policies and procedures, files related to reports
of sexual harassment and sexual assault for academic years 2011-12, 2012-13, 2013-14, and
2014-15, conducted an on-site visit, and interviewed the Complainant, University students and
University staff.
OCR found that at the outset of the investigation, the University had no designated Title IX
coordinator. The University has since designated and trained a Title IX coordinator. OCR found
that the University failed to respond promptly and equitably to student complaints of sexual
harassment and sexual assault, including by failing to determine whether the students were
subjected to a hostile environment. OCR also has determined that the University’s policies and
procedures and its notice of nondiscrimination are not compliant with Title IX.
1

The complaint was filed with OCR on December 19, 2013. OCR determined that the last alleged act of
discrimination was the University’s failure to respond to Student A’s report of sexual assault by August 2013, as
required. Accordingly, OCR determined that the complaint was timely filed.
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

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OCR Docket #05-14-2061

On June 24, 2016, the University voluntarily entered into a resolution agreement (Agreement),
which commits the University to take specific steps to address the identified violations and areas
of concern.
This letter summarizes the applicable legal standards, the information gathered during the
investigation, the reasons for OCR’s determination, and the steps the University has agreed to
take to resolve the investigation.
LEGAL AUTHORITY
The regulation implementing Title IX, at 34 C.F.R. § 106.9, requires a recipient to implement
specific and continuing steps to notify all applicants for admission and employment, students and
parents, employees, sources of referral of applicants for admission and employment, 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.
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. § 106.8(a), to notify all students and employees of the name (or title),
office address, and telephone number of the designated employee(s).
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,
be denied the benefits of, or be subjected to discrimination in education programs or activities
operated by recipients of Federal financial assistance. 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 benefit from the recipient’s program or activity.
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

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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. For example, 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; and if the
conduct occurred, whether a hostile environment existed for the complainant(s) and for others. 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.
Sexual harassment of a student by a faculty member or other employee can also violate Title IX.
A recipient is responsible under the Title IX regulations for the nondiscriminatory provision of
aid, benefits, and services to students. Recipients generally provide aid, benefits, and services to
students through the responsibilities they give to employees. If an employee who is acting (or
who reasonably appears to be acting) in the context of carrying out the employee’s
responsibilities either conditions an educational decision or benefit on a student’s submission to
unwelcome sexual conduct, or engages in sexual harassment that is sufficiently serious to deny or
limit a student’s ability to participate in or benefit from the program on the basis of sex, the
recipient is responsible for the discriminatory conduct and 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 violence.
Title IX does not require a recipient to provide separate grievance procedures for sexual
harassment complaints, including sexual violence complaints. A recipient may use student

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OCR Docket #05-14-2061

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 2 and the accused a prompt and equitable resolution.
BACKGROUND
The University, a regional public university in northwest North Dakota, enrolled approximately
3,064 undergraduate students (61.2% female, 38.8% male) and 284 graduate students (64.4%
female, 35.6% male) University-wide for the 2015-16 academic year. 3
As required annually pursuant to the Jeanne Clery Disclosure of Campus Security Policy and
Campus Crime Statistics Act, 20 U.S.C. § 1092 (Clery Act), for the past four reporting years
(2011, 2012, 2013, 2014), the University reported a total of one sex offense. The University has
yet to report crime data for 2015.
FINDINGS OF FACT
A. Nondiscrimination Notice
The University posted a nondiscrimination notice on its “Keep U Safe” webpage, but not its Title
IX or main web pages. 4 In addition, neither the University’s Student Handbook nor its
Admissions webpage contains a nondiscrimination statement. 5 Further, the notice of
nondiscrimination located on the Keep U Safe webpage is contained on a subpage titled
“Overview.” The Overview subpage does not provide notice that inquiries regarding Title IX
and its implementing regulation may be referred to the Title IX Coordinator or to OCR; instead
that information is contained on a separate subpage titled “Who to Contact.”
B. Title IX Coordinator
When OCR initiated the investigation on February 26, 2014, the University had no designated
Title IX coordinator. On March 21, 2014, the University named its Human Resources Director
(HR Director) as the Title IX Coordinator (Title IX Coordinator) and identified three deputy Title
IX Coordinators: the Vice President of Student Affairs (VPSA), the Assistant Athletic Director
for Compliance (AAD), and the Superintendent of Campus Safety and Security (Superintendent).
The VPSA serves as the Deputy Title IX Coordinator for Students, the AAD serves as the Deputy
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.
3
http://www.minotstateu.edu/instplan/pdf/minotstateuniversityenrollmenthighlight.pdf
4
http://www.minotstateu.edu/keepusafe/; http://www.minotstateu.edu/; http://www.minotstateu.edu/title9/
5
http://www.minotstateu.edu/student_handbook.pdf; http://www.minotstateu.edu/enroll/apply.shtml

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Title IX Coordinator for Athletics, and the Interim Superintendent of Campus Security served as
the Deputy Title IX Coordinator for Security. 6
In addition, prior to the start of the 2014-15 academic year, the University appointed the Project
Coordinator for its “Keep U Safe” program, a program funded by a grant from the Rural Crime
and Justice Center to educate students about sexual violence, as the Deputy Title IX Coordinator
for Prevention and Training. 7 Effective October 1, 2015, the University named the former
Deputy Coordinator for Prevention and Training as the Title IX Coordinator. The former Title
IX Coordinator became the Deputy Title IX Coordinator for Human Resources. The University
did not appoint a new Deputy Title IX Coordinator for Prevention and Training. Appropriate
contact information for the University’s current Title IX Coordinator and the Deputy Title IX
Coordinators can be found on the University’s website. 8
The University’s Title IX webpage states that the Title IX Coordinator “oversees all matters
related to sexual discrimination against students and employees of the [University]” and that
“deputy coordinators are also appointed to assist with specialized areas and in the oversight of
Title IX matters,” including the development of policies and procedures, the development of
training and orientation materials for students and employees, the oversight of investigations of
complaints of sexual harassment and other forms of sex discrimination, the review of complaints
to identify patterns or systemic problems, the protection and safety of those reporting violations,
and compliance with the University’s obligations under the Clery Act. The University told OCR
that the deputy coordinators are assigned to assist with specialized areas and in the oversight of
Title IX matters. The University’s Title IX Coordinator at the time, who reported to the Vice
President of Administration and Finance, told OCR that when he served as Title IX Coordinator,
he reviewed each complaint of sexual harassment or sexual assault and generally delegated
investigatory responsibilities to the Deputy Title IX Coordinators and employees designated as
Title IX investigators.
C. University Policies and Procedures
At the start of OCR’s investigation, the University had four policies that addressed sexual
harassment and sexual assault:
1. H.R. Policy 1.1 (“Harassment Policy”)
2. Policy on Harassment (This policy is an abridged version of the Harassment Policy.)
3. Policy on Sexual Assault
6

The Director of Campus Safety and Security now serves as the University’s Deputy Title IX Coordinator for
Security.
7
The Keep U Safe Program is described below in Section E.2
8
http://www.minotstateu.edu/title9/

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OCR Docket #05-14-2061

4. Student Conduct Policy
On May 1, 2014, the University implemented a Sexual Misconduct and Title IX Compliance
Policy (Title IX Policy). 9
As a result, the University currently has five policies that address sexual assault and sexual
harassment:
1.
2.
3.
4.
5.

Title IX Policy
HR Policy 1.1 (“Harassment Policy”)
Policy on Harassment (This policy is an abridged version of the Harassment Policy.)
Policy on Sexual Assault
Student Conduct Policy

The Title IX Policy is available only on the University’s Title IX website. The Harassment
Policy is and has been published in the Human Resource Policy/Procedures Manual and on the
University’s website since 2013-14. The Policy on Harassment, Policy on Sexual Assault and
Student Conduct Policy are also published in the Student Handbook, which is also available on
the University’s website, and has been available there since 2013-14.
As noted in greater detail below, the University’s policies contain overlapping provisions for
addressing the same conduct, do not clearly specify in every instance the entity and individuals
within the University who are charged with responding to reports of sexual harassment and
sexual assault as well as the procedures those individuals will follow in responding, and do not
ensure that the Title IX Coordinator is informed of all reports of sexual harassment and sexual
assault to enable her to oversee the University’s response to Title IX reports and complaints and
address any patterns or systemic problems revealed by such reports and complaints.
1.

Title IX Policy

The Title IX Policy identifies the Title IX Coordinator and Deputy Title IX Coordinators,
provides their contact information, including their address, email address and telephone number,
and describes their duties, including the oversight of investigations of what the University terms
“sexual discrimination,” violence, harassment and other forms of sexual misconduct and the
provision of interim measures to protect the safety of those reporting violations. The Title IX
Policy includes an assurance that the University will take action to stop sexual harassment and
sexual assault, remedy its effects, and prevent its recurrence. It also includes an assurance that
the University will conduct impartial investigations, separate from law enforcement
investigations, of all reports or notices of sexual misconduct. Originally, the Title IX Policy did
9

www.minotstateu.edu/title9

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OCR Docket #05-14-2061

not identify the steps the University would take to prevent retaliation against students who file
complaints of sexual harassment or sexual assault, either on their own behalf or on behalf of
others, or against those who provide information as a witness during the University’s
investigation or adjudication of a complaint of sexual harassment or sexual assault. However,
the revised Title IX Policy defines retaliation and states that retaliation “will be treated as another
possible instance of harassment or discrimination” and that the University is “prepared to take
appropriate steps to protect individuals who fear that they may have been subject to retaliation.”
The Title IX Policy also includes a description of the University’s investigatory and hearing
process, an explanation of how individuals can file Title IX reports or complaints, and links to
both a printable complaint form and a secure online complaint form. The Title IX Policy informs
students that the University’s Title IX investigation and hearing procedures are independent of
criminal proceedings, though it does not explicitly state that individuals can utilize both the
University and the criminal process simultaneously.
The Title IX Policy defines sexual misconduct as “any non-consensual behavior of a sexual
nature that is committed by force, intimidation, or is otherwise unwelcome that is sufficiently
severe, persistent, or pervasive so as to limit a student’s ability to participate in or benefit from a
Minot State University program or activity.” The Title IX Policy states that a single incident of
sexual misconduct may be sufficient to limit a student’s ability to participate in or benefit from
University programs or activities. The Title IX Policy also defines consent, sexual assault,
sexual discrimination, sexual exploitation, sexual harassment, and sexual misconduct.
The Title IX Policy defines sexual assault, a form of sexual misconduct, as “any sexual act
between two or more people to which one person does not or cannot consent.” The Policy
identifies sexual acts ranging from sexual intercourse, other forms of sexual penetration, to
sexual touching of intimate body parts. The Policy defines consent as “words or actions showing
a clear, knowing and voluntary agreement to engage in [a] mutually agreed upon sexual act” and
notes that consent may not be inferred from silence, passivity or lack of active resistance alone or
a current or previous dating or sexual relationship. The Title IX Policy also contains a definition
of sexual harassment that comports with Title IX.
The Title IX Policy encourages students to report incidents of or information related to sexual
harassment or sexual assault to the University and notes that if criminal activity is involved,
students are encouraged to contact the Minot Police Department (MPD) or Campus Security.
The Policy states that University employees who become aware of a complaint or violation of the
policy shall report the complaint or violation to the Title IX Coordinator or Deputy Title IX
Coordinator if the employee “ha[s] the authority to take action on the complaint or violation.”
However, the Policy does not explain which employees “have the authority to take action on the
complaint or violation.” Moreover, the Title IX Policy does not explain that the policy applies to
conduct by third parties or that the University will process all complaints of sexual harassment

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and sexual assault regardless of whether the conduct occurred off-campus to determine whether
the conduct occurred in the context of an educational program or had continuing effects on
campus.
In addition, the Title IX Policy makes clear that the University will accept anonymous
complaints, but that its ability to investigate such complaints may be limited. Further, the revised
Title IX Policy explains that the University will attempt to protect the privacy and confidentiality
of persons who report sexual harassment and sexual assault, but advises that it cannot ensure
confidentiality at all times, noting that it “must weigh the request for confidentiality against its
obligation to protect the safety and security of the entire campus.” The revised Title IX Policy
does not explain who makes the determination whether to honor a request for confidentiality.
The revised Title IX Policy provides contact information for a local Domestic Violence Crisis
Center (DVCC), which includes a rape-crisis hotline, and the University counselor for
individuals who wish to make confidential reports.
The Title IX Policy contains both a formal and informal resolution process and states that the
informal process is voluntary, may be terminated at any time, and may not be used for complaints
involving sexual assault. Under the informal process, the Title IX Coordinator assigns a
University official (e.g., a Title IX team 10 member, the accused’s supervisor or advisor) to
“provide the complainant with a forum to confront the accused; to express how the alleged
behavior has impacted them and those close to them; and to communicate to the accused and the
University how this behavior needs to be addressed.” The complainant, but not the accused
student, may opt to use and may opt to terminate the informal process at any time. Pursuant to
the informal policy, the accused may acknowledge involvement in the sexual misconduct and in
doing so, agree to a sanction. The accused student has no appeal recourse after acknowledging
involvement. If the accused does not acknowledge involvement and agree to a sanction, the
informal process permits the University official to nonetheless impose a sanction based on the
information gathered during the informal process, and the accused student’s only recourse is to
appeal that determination and sanction to the Title IX Coordinator.
The Title IX Policy states that for the formal process, the University will follow the procedure
outlined in the Student Handbook for complaints of sexual harassment or sexual assault where
the alleged perpetrator is a student 11 and HR Policy 1.1 where the alleged perpetrator is an
employee. The Title IX Policy and the Student Handbook do not state timeframes for major
steps of the investigation and adjudication process.

10

OCR refers to the University’s Title IX Coordinator, Deputy Title IX Coordinators and Title IX Investigators,
collectively, as the Title IX team.
11
Although the Title IX Policy does not specifically name the procedure in the Student Handbook to which it refers,
the only such procedure is the Student Conduct Policy, described below.

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OCR Docket #05-14-2061

The Title IX Policy provides that all determinations concerning sexual harassment and sexual
assault complaints will be based upon a preponderance of the evidence. It also provides that the
complainant and accused have equal opportunities to present witnesses and other evidence,
similar and timely access to information used during the process, and a right to use a support
person (with equal restrictions on the support person’s participation during the process). The
Title IX Policy provides that the complainant and accused are to be informed of the outcome of
the investigation or hearing, 12 and that both parties have the right to appeal the determination.
Finally, the Title IX Policy identifies a range of potential remedies and sanctions for a person
found to have engaged in sexual harassment or sexual assault.
The Title IX Policy also identifies a non-exhaustive list of potential protective measures that are
available to students who report sexual harassment or sexual assault when “warranted by the
circumstances.” The list includes: (1) escort services; (2) no contact orders; (3) housing
assistance, including relocating the accused and/or complainant; (4) alteration of class schedules
of the accused and/or complainant; (5) counseling services; and (6) academic support services.
The Title IX Policy notes that violation of a protective measure may be considered as “grounds
for additional complaints of sexual misconduct or as retaliation for the ongoing investigation of
sexual misconduct.”
1. The Policy on Sexual Assault and the Policy on Harassment
As noted previously, the Student Handbook, which is published online, does not contain the
University’s Title IX Policy. Instead, it contains the Policies on Sexual Assault and the Policy on
Harassment. These policies do not explain how they interact or supplement each other. The
Policy on Sexual Assault contains substantially similar definitions of “sexual assault,” “sexual
harassment,” and “consent” as the Title IX Policy.
However, neither the Policy on Sexual Assault nor the Policy on Harassment references the
University’s Title IX Policy or the complaint filing, investigation, and hearing processes
contained therein. In addition, neither policy identifies the range of potential remedies and
sanctions for a person found to have engaged in sexual harassment or sexual assault. The Policy
on Sexual Assault states that the University will conduct an investigation and disciplinary
proceedings consistent with the Student Conduct Policy and provide interim measures for the
complainant. Further the Policy on Sexual Assault and the Policy on Harassment do not identify
the Title IX Coordinator; instead the Policy on Sexual Assault includes numerous contacts for
reporting sexual harassment or sexual assault, including the MPD, the VPSA, residence hall
staff, the Student Health and Development Center, the DVCC, and other third-party advocacy or
assistance groups. The Policy on Harassment states that employees or students concerned about
violations of the policy may request assistance from the University’s Human Resources Office
12

The Title IX Policy does not mandate that this notice be provided in writing.

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OCR Docket #05-14-2061

and the Student Health and Development Center. It states further that the University’s
affirmative action plan and equal opportunity complaint procedure shall be available for any
person who wishes to allege a violation of the policy, but does not provide further information
(such as links or contact information) about those policies.
2. Student Conduct Policy
The Student Conduct Policy, which is contained in the University’s Student Handbook, sets forth
the procedures to be followed in disciplinary hearings involving complaints of sexual harassment
or sexual assault where the accused party is a student. The Title IX Policy states that the
University will follow the procedure outlined in the “Student Handbook,” which contains a
section entitled “Student Conduct Policy,” to adjudicate complaints of sexual harassment or
sexual assault. However, the Title IX Policy does not specify the circumstances under which the
Title IX team will convene a disciplinary hearing following an investigation or whether a
complainant may request such a hearing following an investigation.
Further, although the Title IX Policy directs the Title IX Coordinator to conduct an investigation
of a complaint of sexual harassment or sexual assault, the Student Conduct Policy directs the
VPSA to conduct an investigation of the allegations. The Student Conduct Policy does not
specify the time-frame for the VPSA’s investigation. The policy states that after the
investigation, the VPSA may: (1) take no action; (2) take administrative action to counsel,
advise, or admonish the student; or (3) initiate hearing proceedings. The policy does not identify
criteria under which the VPSA should determine which action to take.
The Student Conduct Policy grants the VPSA the discretion to hold an administrative hearing or
to refer the case to the Student Welfare and University Affairs Committee (SWUAC). 13 The
policy provides that the accused, but not the complainant, may indicate a preference for the type
of hearing desired and states that the determination as to which type of hearing rests with the
VPSA. The Student Conduct Policy further requires the VPSA to provide notice to the
complainant and accused of: (1) the time, place and nature of the hearing; (2) the particular
section of the University’s rules or regulations involved; (3) a short and plain statement of the
matters asserted; and (4) a statement of the student’s rights. The policy does not specify that this
notice be in writing. 14 Further, the policy does not designate timeframes for the major stages of
the investigation nor does it require the University to provide periodic updates about the
investigation to the parties.

13

The Chair of the SWUAC when OCR initiated the investigation was the Student Center Director. Additionally,
the SWUAC includes faculty members, the University counselor, and student representatives.
14
As noted in more detail below, OCR’s file review further indicates that the VPSA did not always provide the
required notice to students, including both complainants and accused students.

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OCR Docket #05-14-2061

The Student Conduct Policy describes the following hearing procedures, which apply to both
hearings held by the VPSA and by the SWUAC:
(1) hearings shall be conducted informally;
(2) each party has the opportunity to respond to the allegation and present evidence and
argument on the issues involved;
(3) the burden of proof rests on the complaining party;
(4) the parties may resolve the proceedings by mutual agreement, unless precluded by
law;
(5) each party may bring an advisor of his or her choosing to the hearing, who may
participate only at the pleasure of the chair of the SWUAC or the VPSA;
(6) the person conducting the hearing shall issue written findings of fact and, if a
violation is found, impose sanctions, that include fines, parental notification,
warnings, probation, eviction, suspension, or expulsion.
The Student Conduct Policy also grants the following rights specifically to the accused, and not
the complaining, party:
(1) written notice of the charges in sufficient time to ensure an adequate opportunity to
prepare for the hearing;
(2) opportunity to present information on his or her behalf, including written and oral
statements and physical exhibits;
(3) opportunity to hear all information presented and question all who present it;
(4) opportunity to be advised by an advisor or attorney while being questioned;
(5) timely written decision of the hearing findings; and
(6) to appeal decisions involving the imposition of specified restrictions, probation,
suspension, or expulsion.
The Student Conduct Policy contains no written provision for a virtual appearance by either
party.
Finally, the Student Conduct Policy describes the University’s appeals procedures. The policy
provides that when the hearing is conducted administratively by the VPSA, all appeals where the
VPSA imposes sanctions are heard by the SWUAC. The policy further provides that when the
hearing is conducted by the SWUAC, appeals where the SWUAC imposes sanctions are heard by
the Student Rights Committee (SRC). 15 The policy provides that students who are “adversely
affected” 16 by the hearing decision may appeal, and that the appeal must be filed in writing
within 96 hours after the decision was rendered, excluding weekends, holidays, or any other day
15

The SRC consists of the VPSA, VPAA, Director of Financial Aid, three faculty members, and three student
representatives. In addition, the Chair of the SRC, who serves in a non-voting capacity, is the Registrar.
16
The Student Conduct Policy does not clearly identify the individual who might be “adversely affected” by a
decision under the policy.

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OCR Docket #05-14-2061

on which the Office of Student Affairs is not open for at least four hours. The Student Conduct
Policy provides that the filing of an appeal shall stay all sanctions except those involving the
removal of a student from the campus or campus housing to ensure the safety of other members
of the University community.
4. HR Policy 1.1: “Sexual Harassment Policy” 17
HR Policy 1.1 states that it applies to complaints of harassment by and against faculty, staff,
students, and persons doing business with or visiting the University and prohibits sexual
harassment, but does not reference the Title IX Policy or the Title IX Coordinator. HR Policy 1.1
defines sexual harassment as:
unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature when: (a) submission to such conduct is made
either explicitly or implicitly a term or condition of an individual’s employment or
education requirement; (b) submission to, or rejection of such conduct by an
individual is used as the basis for an employment decision, educational decision
(grades, etc.) affecting such individual; (c) such conduct has the purpose or effect
of substantially interfering with an individual’s work or learning performance or
creating an intimidating, demeaning, or hostile offensive working/classroom
environment.
HR Policy 1.1 contains separate reporting procedures for students and faculty/staff. It informs
students that all complaints alleging harassment may be reported to the HR Director or the Vice
President for Administration and Finance (VPAF). It also suggests that faculty and staff may
solve problems at the lowest level by filing complaints regarding employees’ conduct with the
employee’s supervisor, complaints regarding students’ conduct with the department chair, dean,
Vice President of Academic Affairs (VPAA), or VPSA, and complaints regarding visitors with
the faculty or staff’s supervisor or “the vice president with responsibility for that environment.”
HR Policy 1.1 allows for formal complaints on the University’s “Harassment Complaint Form,”
or informal complaints made verbally or through email or letter. The policy informs
complainants that all complaints will be “acted upon” and that a request for confidentiality
cannot be guaranteed. The policy directs anyone who receives a complaint to contact the HR
Director and directs the HR Director or his or her designee to conduct an investigation within 30
days, or within 120 days if there are “particular difficulties or unforeseen circumstances.” The
policy does not require the investigator to provide periodic updates to the parties. The policy
requires the investigator to complete a written “Report of Investigation” with a recommended
finding of whether the policy was violated, which should be provided to the complainant and the
accused. The policy notes that even if the investigator recommends disciplinary action in the
17

http://www.minotstateu.edu/hr/manual/1_1_harassment.pdf

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OCR Docket #05-14-2061

“Report of Investigation,” the “appropriate administrator” who will be determining whether to
discipline the accused individual is not bound by the recommendation. The administrator may
discuss the report with the investigator and others in the supervisory chain to make a
determination concerning the recommendation, but the policy does not establish criteria or
standards for when a disciplining administrator may disregard an investigator’s
recommendations. Finally, HR Policy 1.1 contains a non-retaliation provision, and allows
complainants to appeal the recommendation if the investigation determines that the accused did
not violate the policy. HR Policy 1.1 allows faculty and staff to appeal disciplinary actions
through the Faculty Rights Committee or Staff Personnel Board.
D. Student Conduct Sexual Harassment Investigation and Hearing Process
According to information contained in the University’s policies when OCR initiated this
investigation, the University’s HR Director or the VPSA conducted investigations into reports of
sexual harassment and sexual assault. The University’s Policy on Sexual Assault provided
students contact information to report incidents of sexual harassment or sexual assault, including
contact information for the MPD, the VPSA, residence hall staff, the Student Health and
Development Center, the DVCC, and other third-party advocacy or assistance groups. The
University’s Harassment Policy directed students and staff to report incidents of sexual
harassment to the HR Director.
In addition, the University did not have a Title IX Coordinator responsible for coordinating the
University’s efforts to comply with and carry out its responsibilities under Title IX. The
evidence showed that the investigation of sexual harassment reports did not follow a prescribed
protocol and, as described below, that affected individuals were denied a prompt and equitable
response in most cases.
Interviews with University officials revealed that investigations into sexual harassment and
sexual assault reports varied and that there was not a protocol for investigations. The HR
Director and VPSA told OCR that when they investigated reports of sexual harassment or sexual
assault they interviewed both the complainant and the accused and made a record of the
investigatory steps taken. The VPSA told OCR that the University utilized different hearing
protocols for adjudicating allegations of sexual harassment or sexual assault. He described an
administrative hearing over which he presided and a hearing before the SWUAC, a committee
that includes faculty, staff, and students, and stated that the accused, not the complaining student,
could choose whether to have an allegation of misconduct determined by an administrative
hearing before the VPSA or before the SWUAC.
In addition to the procedures described in the policies, the VPSA told OCR that students could
bring an advisor of their choice to a hearing. He also told OCR that he informed complainants
and accused students that they were permitted to review the investigatory file in his office prior

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to the hearing; however, this procedure was not published to the University community
anywhere. The VPSA stated that parties were allowed to question each other only at the
discretion of the chair of the hearing and that questions about past sexual history were permitted
only if they were relevant to the particular case. Finally, the VPSA stated that the University
applied the preponderance of the evidence standard for administrative hearings before the VPSA
and the SWUAC. The VPSA stated that the hearing chair prepared a formal letter summarizing
the University’s decision.
The Chair of the SWUAC is the University’s Student Center Director (SWUAC Chair). The
SWUAC Chair told OCR that his day-to-day job responsibilities include creating dining plans
and working with food vendors, issuing ID cards to students, organizing homecoming festivities,
advising student government and other student associations, and supervising the Student Center
custodial staff. He stated that he became the Chair of the SWUAC sometime in 2011, after the
previous chair left the University. The SWUAC Chair acknowledged that neither he nor other
members of the SWUAC had received training on how to adjudicate allegations of sexual
harassment or sexual assault.
The University’s previous and current policies and procedures do not set forth any guidelines for
determining appropriate sanctions when a hearing committee determines that a student or
University employee has engaged in sexual harassment or sexual assault. The SWUAC Chair
also told OCR that the complainant is informed of the committee’s decision verbally and that
only the accused receives written notice of the decision.
Parties have the right to appeal an adverse decision to the Student Rights Committee (SRC);
however in the one report of sexual harassment for which the University conducted a hearing,
only the respondents received notice of the right to appeal to the SRC.
Prior to OCR’s initiation of this investigation, the University had no policy regarding protecting
affected students’ confidentiality; the Policy on Sexual Assault generally instructed the VPSA to
“take steps to protect confidentiality” in working with the complainant. The Title IX Policy,
which is published only on the University’s web page, states in a section regarding third-party or
anonymous reports of sexual violence that the University advises that “All reports of sexual
assault are treated with respect to the privacy of the involved individuals, to the extent permitted
by law. Incidents are reported to appropriate departments and agencies in consideration of safety
concerns and investigative needs.”
The University informs students who desire confidentiality that they may discuss an incident of
sexual harassment or sexual assault confidentially with the DVCC and the University’s
Counselor, whose contact information is provided in the Title IX Policy.

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E.

Coordination with Law Enforcement

At the outset of OCR’s investigation, the University did not have a written protocol coordinating
investigator responsibility between the Title IX team and University’s Campus Security or the
MPD. In addition, the University did not have a memorandum of understanding (MOU) with the
MPD. As explained in greater detail below, each of the four complaints of sexual harassment or
sexual assault that were filed prior to implementation of the Title IX Policy and reviewed by
OCR, were reported to a campus security officer. However, only one of those reports led to a
Title IX investigation. OCR did not find any referrals of reports of sexual violence from the
MPD to the University prior to an April 8, 2015 referral of an alleged sexual assault in a
University dormitory.
On April 15, 2016, the University entered into an MOU with the MPD and provided a copy to
OCR. The goals of the MOU are to: (1) ensure that crimes committed on campus are promptly
reported and investigated; (2) enhance communication and cooperation between the University
and the MPD; and (3) enhance the University’s ability to alert the University community about
crimes that pose a serious or ongoing threat to public safety. The MOU states that the MPD will
make efforts to share information in order for the University to provide a safe and violence free
environment and reiterates the University’s obligations under Title IX, specifically its obligation
to conduct concurrent investigations even where the MPD conducts its own investigation. The
MOU did not specify under what, if any, conditions the University would temporarily suspend a
Title IX investigation during the law enforcement investigation.
F.

Response to Sexual Harassment and Sexual Assault Reports

Student A’s Report
On April 8, 2013, Student A’s attorney submitted a complaint by way of letter to the University’s
VPAA alleging that Professor A sexually harassed her when he solicited sex from her. The letter
complaint alleged that Professor A implied that without his assistance Student A would be
unable to achieve her professional goals. The University did not immediately respond to the
complaint, and on May 6, 2013, Student A’s attorney wrote to the University to inform it that: (a)
Student A had received no response to the April 8, 2013 complaint; and (b) Professor A and
others on his behalf had contacted Student A through text and email to discourage her from
pursuing any complaint against him. The May 6, 2013 letter requested that the University take
steps to stop Professor A, and others on his behalf, from contacting Student A. On May 15,
2013, the University responded to the May 6, 2013 letter, stating that it had not received the April
8, 2013 complaint and that it had begun an investigation into Student A’s complaint based on the
attorney’s correspondence of May 6, 2013. The University did not initiate a no-contact order and
the May 15, 2013 letter did not state that it took any steps to prohibit Professor A or others on his

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behalf from further contacting Student A. Student A reported no further contact from Professor
A or others on his behalf after May 6, 2013.
On May 28, 2013, the University sent a letter to Student A’s attorney requesting additional
information about Student A’s allegation. On June 24, 2013, Student A’s attorney submitted a
detailed timeline, prepared by Student A, outlining her allegations. In the timeline, Student A
described numerous alleged instances of sexual harassment and sexual assault that began in June
2010 and continued through December 2012.
On July 2, 2013, Professor A’s Department Chair (Chair) submitted documents to the HR
Director that he believed were relevant to Student A’s allegation. The documents indicated that
the Chair had expressed concern on several occasions about Professor A’s interactions with his
students, noting the impropriety of traveling alone with a student, of having late night meetings
in his office with students, and of arranging his office furniture in a manner that blocked the view
from the hallway.
Throughout June and July 2013, University officials, including Counsel, the former President,
the VPAF, and the HR Director, exchanged emails about Student A’s allegations. Several emails
detailed the University’s difficulty contacting Student A’s attorney, who repeatedly did not
respond to requests for information or requests to schedule a time for the University to interview
Student A. On June 28, 2013, the former President wrote to Counsel, the HR Director, the
VPAF, and the VPAA, and the Interim Chancellor of the NDUS in which he expressed concern
that the University had not taken more steps in response to Student A’s allegations.
A few emails were exchanged in August 2013 between Counsel for the University and Student
A’s attorney requesting evidence, in the form of photos or texts, supporting her allegations. 18
Ultimately, Professor A submitted a formal resignation to the University on August 5, 2013,
which the University accepted.
On August 14, 2013, a different attorney from the same firm notified the University that she
would be the principal contact for Student A. However, there was little interaction between the
University and Student A’s second attorney until late October 2013, when the second attorney
requested that the University remove Student A’s photograph from certain promotional materials.
The University granted Student A’s request.
On December 9, 2013, Counsel for the University wrote to Student A’s original attorney (who
was again the principal contact for Student A) requesting input from Student A and also
18

Although Student A’s attorney represented that he would provide these evidentiary materials to the University, he
did not do so. Student A told OCR that she was unable to retrieve texts and photos because prior to the time she
filed the complaint with the University, Professor A deleted the texts and photos from her phone.

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requesting permission to contact Student A’s parents, who had been writing letters to various
agencies criticizing the University’s handling of Student A’s complaint. Student A’s attorney did
not respond to these emails and shortly thereafter Student A filed the subject complaint with
OCR in which she alleged that Professor A sexually assaulted her. 19
As of the date of the University’s last document production to OCR, the University had not
issued written notice to Student A or Professor A of findings regarding the April 2013 complaint
that Professor A sexually assaulted Student A between June 2010 and December 2012.
OCR interviewed Student A, the HR Director, the Chair, three Department faculty, the VPAA,
the former President, and several former Department students regarding Student A’s allegation
that Professor A sexually harassed and sexually assaulted her and the University’s response to
her complaint. All XXX department employees OCR interviewed denied that they were aware of
Professor A’s conduct prior to Student A’s April 8, 2013 complaint to the University. Similarly,
none of the former students OCR interviewed stated that they were aware that Professor A had
engaged in sexual harassment of any student. The University asserted that its ability to conduct
an investigation into Student A’s allegations was limited by Student A’s attorney’s lack of
communication with the University.
Conclusion
Based on the above, OCR determined that the University did not promptly and equitably respond
to Student A’s report that Professor A sexually harassed and sexually assaulted her between June
2010 and May 2012, when she graduated from the University.
Student A reported Professor A’s alleged sexual harassment and assault to the University on
April 8, 2013. The University did not respond and asserted it received no notice of Student A’s
report until May 6, 2013, when Student A reported the alleged sexual harassment and sexual
assault a second time. After it received notice of Student A’s complaint, the University did not
offer to provide any interim services to Student A, such as issuing a no-contact order or offering
Student A counseling services.
On June 24, 2013, Student A provided a detailed narrative of her allegations in response to the
University’s request of May 28, 2013, describing specific incidents of sexual harassment and
sexual assault. On July 2, 2013, the Chair provided the HR Director a series of documents
related to Student A’s allegations. Although the University attempted but was unable to obtain
additional information from Student A, there is no evidence in the file that the University
interviewed Professor A, XXX department faculty and XXX department students about Student
19

When OCR interviewed Student A in January 2014, she told OCR that she was no longer represented by an
attorney.

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OCR Docket #05-14-2061

A’s allegations.
The University did not adjudicate Student A’s allegation utilizing hearing procedures pursuant to
University policies. The University also did not determine whether Student A was subjected to a
sexually hostile environment or issue a written notice of its findings to Student A. The
University did not determine whether their failure to provide a prompt and equitable response
created a hostile environment for other students on the basis of sex, and whether appropriate
remedies were necessary to prevent recurrence. Instead, when Professor A resigned in August
2013, the University halted its investigation.
OCR determined that the University did not provide a prompt and equitable response to Student
A’s report in that it did not promptly complete an investigation of the complaint, did not offer
Student A interim services, and did not make a determination as to whether Student A was
subjected to a hostile environment and take prompt and effective steps reasonably calculated to
end any harassment, eliminate a hostile environment, and prevent further harassment from
recurring.
Reports filed prior to May 1, 2014, the effective date of the Title IX Policy
In addition to Student A’s report, the University produced four reports of sexual harassment that
it received prior to its adoption of the Title IX Policy. In each of the four reports, the student
reported the incident to a campus security officer who recorded the report on a security incident
report. The University conducted an investigation beyond the preliminary information gathered
by Campus Security in only one of the four reports.
The three reports in which, based on the content of the files, the University conducted no
investigation beyond the preliminary information gathered by campus security:
•

Although the University placed an accused student on probation for the remainder of the
2012-13 academic year after determining that he had sexually harassed a female student
based on limited information contained in the campus security report, it failed to provide
written notice of its determination to the complainant or inform her of how to appeal the
sanction (it did inform the accused how to appeal the sanction). OCR determined, based
on its review of the evidence in the file, that the University’s response to this report was
prompt in that it issued a determination within 10 days of receiving the report from
Campus Security, but not equitable because there is no record in the University’s file that
it conducted any investigation beyond the Campus Security report prior to imposing a
sanction on the accused or that the University assessed whether a hostile environment
existed for the student and, if so, remedied its effects. (Reported on October 9, 2012).

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OCR Docket #05-14-2061

•

Regarding an anonymous report of “indecent exposure,” OCR was unable to determine,
based on its review of the evidence in the file, whether the University’s response to this
report was equitable because documentation contained in the University’s file does not
establish whether the University attempted to identify the reporter or refer her to
resources that might remedy the effect of the indecent exposure. (Reported on February
27, 2013).

•

After the MPD arrested an individual suspected of having solicited sex from six different
University students, each of whom he approached while driving XXX on campus, the
University did not document whether the suspect was a student at the University, and if
so, why the University did not pursue discipline against him through the judicial process,
and whether the University informed the six reporting students that resources were
available to them. OCR determined, based on its review of the evidence in the file, that
the University’s response to this report was prompt in that within one week of learning of
the harassing conduct, the University closed the case when it learned that MPD had
arrested a suspect, but not equitable because there is no record in the University’s file that
it assessed whether a hostile environment existed for the students and, if so, remedied its
effect on each of them. (Reported on November 26, 2013).

Student B’s Report
The University investigated Student B’s January 15, 2012 report that Students C and D
repeatedly sexually harassed her (uttering repeated slurs, stalking and menacing Student B on and
around campus, including in a dormitory elevator). Student B made six additional reports that
Students C and D continued to harass her on January 30, February 1, February 2, February 6,
February 7, and February 8, 2012. The VPSA met with Student C, one of the accused students,
on January 27, 2012, prior to the second report of harassment, but never met with Students B, the
complainant, or D, the second accused student. Further, the VPSA did not follow up with
Student C when Student B filed additional reports alleging he continued to harass her. The
VPSA stated that he was unable to meet with Student D because of Student D’s “work schedule”
and so instead asked Student C to instruct Student D that their actions towards Student B “could
be viewed as sexual harassment.”
The SWUAC held a hearing regarding Student B’s reports on February 7, 2012. The University
did not provide interim services to Student B between the time of her first report on January 15,
2012, and the February 7, 2012 hearing regarding Students C and D’s conduct. Students C and D
were notified in writing of the scheduled hearing date but did not attend the hearing. The
SWUAC imposed the following sanctions: (1) barred Students C and D from Student B’s
dormitory; and (2) barred them from contact with Student B. In addition, the SWUAC informed
Students C and D that further violations would result in immediate expulsion from the
University. On February 7, 2012, the University issued its written determinations to Students C

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and D. After Student B’s February 8, 2012 report that Students C and D continued to harass her,
the VPSA notified them by letter dated February 8, 2012, that they had been expelled. The letter
also included a “no trespass” order that barred Students C and D from campus. However, the
University did not provide written notice to Student B summarizing the result of the hearing or
the VPSA’s decision to expel Students C and D.
Students C and D did not submit a written appeal. However, two days after Students C and D
were expelled, the VPSA notified them in writing, but did not provide Student B with written
notification, that the University would reconvene the SWUAC and provide them with a new
hearing, which was held on February 13, 2012. The VPSA told OCR that the University’s
former President believed that the University should grant Students C and D a rehearing because
they had not participated in the original hearing and because the consequence (expulsion) was so
serious. The VPSA also told OCR that Student B was notified of the rehearing informally and
that she attended the rehearing. After the rehearing, the SWUAC did not make a determination
as to whether Students C and D violated University policy or sexually harassed Student B. The
SWUAC revoked Students C and D’s expulsion and modified the sanctions to include no contact
with Student B and barred them from Student B’s dormitory. The SWUAC notified Students C
and D of the decision in writing and their right to appeal the determination. The University
verbally advised Student B of the revised determination, but did not give Student B the written
determination provided to the other parties or advise her of any right to appeal the SWUAC’s
decision.
Students C and D appealed to the SRC, which heard their appeal on February 24, 2012.
University witnesses could not describe the manner in which the appeal was heard and the
University did not provide any documentation that Student B was informed of the appeal or
allowed to participate in it. The SRC notified Students C and D on February 29, 2012, that it
eliminated the sanction restricting their ability to enter Student B’s dormitory but left in place the
no contact order. The SRC also suggested that Students B, C and D meet for mediation.
According to the University, mediation did not occur. The SRC did not provide notice to Student
B of its determination.
Student B stated to OCR that she believed that the University had swept her allegations “under
the rug,” but did not respond to OCR’s further efforts to contact her regarding the effects of
Student C and D’s harassment as well as the University’s responses to her six reports. In
addition, there was no indication in the documentation provided by the University, that Student C
or D harassed Student B after the SRC completed its review of the appeal.
Conclusion
The University did not promptly and equitably respond to Student B’s reports that Students C
and D sexually harassed her in January and February 2012.

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Student B initially reported Students C and D’s alleged harassment to the University on January
15, 2012. She made six additional reports that Students C and D continued to harass her.
Despite Student B’s numerous reports of Students C and D’s alleged harassment, the University
took no interim measures to protect Student B from Students C and D’s sexual and retaliatory
harassment nor did it offer her resources or support to remedy the effects of their alleged
harassment before the University held a hearing and made its determination.
In addition, the University deviated from its grievance policies and granted Students C and D a
second hearing, after they failed to attend the initial hearing, because the former President
believed the sanction they received (expulsion) was too severe. Students C and D had not filed a
written appeal and Student B received no formal notice of the second hearing.
Moreover, Student B received no written notice of the outcome of the initial hearing, the second
hearing, Students C and D’s appeal of the second hearing, or the outcome of Students C and D’s
appeal of the second hearing.
Finally, the University did not provide an equitable process to Students C and D. There was no
evidence in the file that the University attempted to interview Student D at a time that did not
conflict with his work schedule or later interviewed Students C and D after Student B reported
further incidents of harassment. The University imposed expulsion on both students without
having conducted an investigation that included an opportunity to hear Student D’s account of
events.
Reports Filed After May 1, 2014, the effective date of the Title IX Policy
The University provided files of seven reports of sexual harassment and two reports of sexual
assault that occurred during the 2014-15 academic year. While these files, received after the
University had named a Title IX Coordinator and launched the Title IX webpage, contain more
information than the files related to previous reports of sexual harassment or sexual assault, the
files nonetheless were often unclear or incomplete. Most notably, only one of the files included
notice to the complainant and accused student of the outcome of the investigation. In addition,
the files did not always contain information about whether the University conducted a hearing or
relied on a determination made by the investigator.
Fall 2014 reports
During the fall 2014 semester, the University received three reports of sexual harassment. The
University responded promptly to each of these reports.

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First, the University responded within 4 days to a complaint reported on October 23, 2014, that
three unknown persons were requesting XXX photographs and creating fake XXX profiles with
the complainant’s contact information. OCR determined that the Title IX team’s response was
not only prompt, but also equitable in that staff utilized the University’s Information Technology
personnel to coordinate with MPD in an attempt to locate the alleged harassers, each of whom
the University concluded was likely not a student based on the social media user-names provided
by the complainant. Nevertheless, the University provided the complainant with counseling,
escort services, academic assistance, and assistance contacting the MPD.
The University also addressed a report of harassment (October 28, 2014) of a female assistant
coach by the team’s male head coach. The assistant coach’s written report, which she submitted
on the “Formal Sexual Misconduct Reporting Form,” described her feelings of alienation,
rejection, and humiliation by the head coach, as well as his belittling remarks (calling her a
“wimp” and telling her to “shut [her] mouth, give [her] opinion and then be quiet,” etc.). The
University’s Title IX Coordinator and a Title IX investigator interviewed each party and all other
assistant coaches on the team before determining that although there were “communication and
perception problems,” the asserted comments did not have “any basis in sexual discrimination.”
The University conducted a prompt investigation, which it concluded on December 9, 2014.
However, the University did not provide the parties with written notice of its determination.
In the third report of sexual harassment (October 26, 2014), the accused acknowledged to the
University making inappropriate, sexual comments to a female student, and also acknowledged
asking for the phone number of a female resident assistant (also a student), and subsequently
graphically described the murder of a woman in a “XXX that he was writing” to another female
resident assistant, who was a student (collectively, the complainants). The Director of
Residential Life promptly advised the Title IX Coordinator of the complaint but did not refer the
matter to the Title IX team for handling. The Director promptly, within four days, obtained an
informal resolution after speaking with the accused student, who promised not to make further
comments of this type. The Director also gave the accused student an oral warning; however
there is no indication in the file whether any of the complainants were notified of the outcome,
provided information on available resources, or informed of the right to appeal the sanction. The
Director also advised the Title IX Coordinator of the informal resolution. The University’s
response was, however, inequitable, as OCR could not determine from the documentation
whether the complainants agreed to participate in an informal resolution of their complaints,
were given an opportunity to participate in that process, or provided information about available
resources as well as the University’s determination.
Spring 2015 reports
During the spring 2015 semester, the University received two reports of rape and four reports of
sexual harassment. OCR notes that a single incident of rape can create a hostile environment for

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OCR Docket #05-14-2061

the affected student. The complainants in the reports below did not identify the accused
individuals (one of whom was a student) and no disciplinary actions or remedial measures were
taken by the University.
Reports of rape
In one of the reports of rape (reported on January 25, 2015), Campus Security referred to the
Title IX Coordinator a report that a non-student raped a female student in her dorm room during
a date. In that case, the University and MPD coordinated efforts to identify the suspect whose
last name was unknown to the complainant but whom the University subsequently identified.
The University provided the student with interim measures, including granting her request to
change dorm rooms, providing her with a referral to the University Counselor, and providing a
full tuition and expenses refund after the student, three days after reporting the rape, left the
University and returned home. There is no documentation showing that the University remained
in contact with the student after she withdrew, or offered to assist her should she choose to
resume her studies. In addition, the University did not determine whether the student was
subjected to a hostile environment. Further, there was no evidence that the University assessed
what actions, if any, were necessary to ensure a safe and nondiscriminatory environment for all
students.
In the other rape report (reported on April 7, 2015), MPD notified the Title IX Coordinator of a
report that a male student allegedly sexually assaulted a female student in her dorm room. One
of the University’s Deputy Title IX Coordinators reached out to the student and provided
information about the University’s Title IX procedures and interim measures, including housing
and academic assistance and counseling. The student requested and the University provided
academic assistance and counseling during the spring 2015 semester. The student declined to
identify the student who sexually assaulted her or support an investigation by the University;
however, the University had the accused student’s first name, which was included in the MPD
report it received, and could have attempted to identify him through other means, such as by
reviewing video footage and visitor logs from the student’s dorm.
Although the University responded to the report of an alleged sexual assault in fewer than thirty
days and provided the student with resources to address her immediate needs, the file does not
reflect that the University attempted to learn the identity of the accused. Additionally, the
University did not provide documentation indicating that the Title IX Coordinator assessed
whether the University could honor the student’s request not to proceed with an investigation
while still providing a safe and nondiscriminatory environment for all students, including the
student who was allegedly sexually assaulted. In addition, there was no evidence that the
University determined whether the student or the broader community were subjected to a hostile
environment or assessed whether broader remedies were necessary to provide a safe and
nondiscriminatory environment for all students.

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OCR Docket #05-14-2061

•

Sexual harassment reports

The University investigated four reports of sexual harassment (reported on January 14, 2015,
January 26, 2015, February 2, 2015, and February 26, 2015); it did not convene a hearing under
the University’s Student Conduct Policy or make a determination that no hearing was needed in
any of them.
In the January 14, 2015 report, after a professor reported to the Title IX team that a male student
in his class was stalking and had previously sent unwanted messages through social media to a
female student in his class, two of the University’s Deputy Title IX Coordinators interviewed the
professor, the female student (the complainant), and the male student (the accused), and without
holding a hearing, determined that there was insufficient evidence the accused student violated
University policy. The University promptly responded to the report and concluded its
investigation in less than one month, at which time it instructed the accused student to avoid the
complainant’s place of employment and arranged the students’ schedules so they would not be in
the class (which had a flexible schedule) at the same time. The University’s response was
equitable to the extent that the Deputy Title IX Coordinator’s report summarizing the
investigation noted that counseling and academic support could be arranged for either student,
but OCR was unable to determine from the file whether either student was informed verbally or
in writing of this outcome. Additionally, the University’s response was inequitable as the Title
IX team failed to provide written notice of the outcome of its investigation to either student.
The January 26, 2015 report was first made by several female students (the complainants) who
alleged that a male student (the accused) in the XXX program on multiple occasions was
observed masturbating in class. The students first reported the accused student’s behavior to
their instructor, who reported it to the department head who reported it to the department chair.
Together the two administrators met with the accused student, who denied the behavior; the
administrators did not meet with the complainants to obtain their account of the allegation. A
second report about the same student was raised by the XXX program director, who heard of the
incident from an instructor and contacted a Deputy Title IX Coordinator. The Deputy Title IX
Coordinator encouraged the program director to submit a formal sexual misconduct reporting
form, which she did on February 2, 2015. The department head and the department chair then
also submitted a formal sexual misconduct reporting form about the accused student’s behavior.
Upon receipt of the formal reports, two investigators on the Title IX team conducted an
investigation in which they interviewed the three complainants and the accused student, the
instructor, and the department head and chair, who were involved in responding to the first
report, as well as the program director who brought the matter to the attention of the Title IX
team. The Title IX investigators concluded that there was insufficient evidence to find that the
accused student violated the University’s sexual misconduct policy and noted in the investigative

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summary that the complainants “felt that the matter had been dealt with.” On February 24, 2015,
thirty days after the instructor received the complainants’ first report, and 23 days after the
program director filed a formal sexual misconduct reporting form, the Title IX Coordinator
issued written notice to each of the complainants and the accused student stating the University’s
findings and providing notice of the appeal process. The students did not appeal. OCR
determined that the University’s Title IX team responded promptly after receiving the formal
sexual misconduct reporting form(s), and provided written notice of its determination, including
information about filing an appeal.
The University also investigated a February 2, 2015 report by a student that a professor created a
hostile environment based on sex when the professor, in the context of a class discussion on
workplace discrimination, expressed his view that equal opportunity laws do not protect lesbian,
gay, bisexual and transgender (LGBT) individuals in the work place, that businesses should not
have to deal with LGBT issues, and that “if we keep making things equal, that we will eventually
have monkeys in the workplace.” Although the University completed its investigation within
nine days and determined that a hostile environment was not created by a single discussion in the
context of a graduate level XXX course where the professor acknowledged making comments
that may have caused some students to feel “uncomfortable” as part of a pedagogical approach
that the professor asserted was intended to provoke thought, stimulate discussion, and, in his
view, constituted protected speech, it failed to provide written notice of its determination to the
complainant or the accused professor.
In responding to a February 26, 2015 report by a female student who was employed as XXX that
a male coach made inappropriate comments about women, including comments about wanting
sexual favors from waitresses and sexually inappropriate comments about female athletes, the
Title IX team interviewed multiple witnesses in the XXX department, including the female
student complainant. The Title IX investigator found insufficient evidence to support the
complaint allegation. The University promptly completed its investigation in fewer than 60 days;
however, the University’s records do not indicate whether written notice of its determination was
provided to the complainant or the accused coach as is required for an equitable outcome.
G.

Training and Outreach

1. Training of University Employees
Title IX requires that all persons involved in implementing the Title IX grievance procedures
have training or experience in handling complaints alleging discrimination based on sex and in
the operation of the University’s grievance procedures. The University needs to ensure that their
employees know how to report harassment to appropriate officials and that those officials are
trained in how to respond properly.

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Title IX Investigative Employee Training
OCR’s investigation revealed that the University had not provided training for University
officials responsible for handling the University’s compliance with Title IX prior to the start of
OCR’s investigation. The University acknowledged that prior to the initiation of OCR’s
investigation it provided no Title IX-specific training to employees who investigated allegations
of sexual harassment or sexual assault, including the HR Director (who served as the Title IX
Coordinator from March 21, 2014 until October 1, 2015), the VPSA, and the Superintendent of
Campus Security, and only began to provide such training in November 2014. At that time, six
University employees, including the then Title IX Coordinator, two Deputy Title IX
Coordinators, and three Title IX investigators, attended a two-day training for Title IX
investigators. The training included general information about Title IX, methods of
investigation, the standard of proof, interview techniques, evidence collection, hearing
procedures, remedies, appeal procedures, and the prohibition against retaliation.
In addition, beginning on February 3, 2015, the six employees who attended the November 2014
training and the VPSA, the Interim Superintendent of Campus Security, the Counselor, and the
Director of Student Housing attended a two-day training titled “The Integrated and Coordinated
Approach to Sexual Misconduct: Understanding the Intersection of Title IX, the Clery Act, and
the Violence Against Women Act.” The training included general information about Title IX
and its regulatory framework, Title IX Coordinator responsibilities, University Title IX
responsibilities, and investigative techniques (including information about privacy and retaliation
considerations, interviewing techniques, credibility determinations, consent, the role of alcohol in
sexual assault, evidentiary considerations in sexual harassment or sexual assault hearings, and
coordination with law enforcement).
On December 5-6, 2015, the University’s new Title IX Coordinator and a Deputy Title IX
Coordinator attended a training titled “Title IX Compliance Institute: Advanced Workshop,” that
included discussion of recent OCR letters of finding and resolution agreements.

Responsible Employee Training
The University reported that all full-time faculty and staff attended an October 13, 2013 training
titled “Preventing Harassment.” The University did not provide a narrative description of the
training or any training materials.
Beginning in the 2014-15 academic year, one of the University’s Deputy Title IX Coordinators
provided Title IX training to students who worked as resident advisors in the University
residence halls. The training provided a brief overview of Title IX and instruction regarding the
obligations of responsible employees to report incidents of sexual harassment or sexual assault to

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the Title IX team. The training included information about how to talk to persons who report
incidents of sexual harassment or sexual assault and University and community services
available to persons who experience sexual harassment or sexual assault.
Additionally, during the fall of 2015, the University’s Title IX Coordinator and a Deputy Title IX
Coordinator conducted Title IX-specific training, including information about the University’s
reporting requirements for responsible employees and campus resources, for new faculty,
resident advisors, the Student Affairs Team, and student wellness employees.
The University did not provide any information that it provided additional training to campus
security officers, faculty, or staff, other than those mentioned above, before or after OCR
initiated this investigation.
Based on the above, OCR determined that prior to the initiation of this complaint, the University
failed to meet its obligation to ensure that all persons involved in handling sexual harassment and
sexual assault complaints were trained and had experience to respond appropriately to Title IX
reports. Since then, the University has provided training to the Title IX Coordinator and Deputy
Title IX Coordinators, to ensure that they know how to handle sexual harassment and sexual
assault complaints. They have been trained on how to interview persons subjected to sexual
violence, the proper standard of review, and the need for an appropriate institutional response to
reports of sexual harassment and sexual assault. However, OCR’s review of the cases did not
establish that in every instance the trained members of the Title IX team responded equitably to
reports brought to their attention, suggesting that the training has not been completely effective.
In addition, the Chair of the SWUAC acknowledged that neither he nor other members of the
SWUAC had received training on how to adjudicate allegations of sexual harassment and sexual
assault. Further, the SWUAC has student members, which OCR strongly discourages. 20 OCR
will monitor the participation of students on the SWUAC and SRC. The Chair informed OCR
that he had been chair since 2011 and that his day-to-day job responsibilities were wholly
unrelated to Title IX and in fact focused on creating dining plans, working with food vendors,
issuing ID cards to students, organizing homecoming festivities, advising student associations,
and supervising Student Center custodial staff.
OCR also determined that the University’s training for staff who are responsible employees, both
before and after the initiation of this complaint, is insufficient to ensure that all University
employees are familiar with the University’s policies prohibiting sexual harassment and sexual
assault in that it has not trained all responsible employees, including security officers and faculty
other than those newly hired. Although the files reviewed by OCR during this investigation
suggest that some improvement has been made, as responsible employees increasingly refer
reports of possible sexual harassment and sexual assault to members of the University’s Title IX
20

The Student Rights Committee also has student members, which OCR strongly discourages.

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OCR Docket #05-14-2061

team, the lack of on-going, effective training for responsible employees raises a concern for OCR
that additional and more effective training must be provided to ensure that the University can
provide prompt and equitable responses to all possible instances of sexual harassment or sexual
assault of which it knew or should have known.
2. Student Training and Outreach
In the spring 2013, the University initiated mandatory training for new and transfer students titled
“CONNECT,” which was funded through a Campus Grant to Reduce Sexual Assault, Domestic
Violence, Dating Violence and Stalking that it received in 2012. The CONNECT training
included information about the University’s definitions of sexual harassment and sexual assault,
the University’s Title IX Coordinators, other University resources (particularly the Student
Health and Development Center and counselors), how to report incidents of sexual harassment or
sexual assault, the manner in which the University responds to and investigates reports of sexual
harassment or sexual assault, and community resources for persons who experience sexual
harassment or sexual assault.
In addition, the University initiated the “Keep U Safe” program, designed to “foster a safe and
inclusive campus community.” The University conducts outreach through the Keep U Safe
program, including presentations to the University community and the creation of a web page
with information about sexual harassment and sexual assault. The web page contains an
overview of the University’s Title IX Policies and nondiscrimination statement, contact
information for the University’s current Title IX Coordinators and other University and
community resources for individuals who experience sexual harassment or sexual assault,
definitions and examples of types of sexual harassment or sexual assault that individuals
experience, links to the University’s online complaint form, and educational information about
sexual harassment and sexual assault (e.g., “myths and facts,” suggestions for steps to stop or
address sexual harassment and sexual assault (either as a bystander or an individual experiencing
it)).
In addition, student clubs and organizations sponsor activities that provide information about
sexual harassment and sexual assault, including information about definitions of sexual assault
and consent, best practices for safety and self-defense, and resources available for individuals
who experience sexual harassment or sexual assault. These activities included an MPD and
DVCC program titled “It Was Rape,” activities during Sexual Assault Awareness month (April)
conducted by student groups, and “Take Back the Night” initiatives.
OCR notes that the University provides one-time training for new and transfer students on Title
IX, including sexual harassment and sexual assault that aims to educate students on the types of
conduct that are prohibited under the University’s policies, how to report sexual harassment and
sexual assault, and who at the University is charged with responding to student reports.

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Additionally, through the “Keep U Safe” program, the University offers periodic outreach and
educational programs to members of the University community regarding its Title IX policies
and sexual harassment and sexual assault, generally. OCR attempted (through focus groups) to
obtain information from students to determine the effectiveness and adequacy of the University’s
training but was unable to do so.
ANALYSIS
A.

Notice of Nondiscrimination

Based on the evidence obtained, OCR determined that the University’s notice of
nondiscrimination violates Title IX. The University posted a nondiscrimination notice on its
Title IX webpage, but not the University’s main web page. 21 Further, neither the University’s
Student Handbook nor its Admissions webpage contains a nondiscrimination statement. 22
The University’s notice of nondiscrimination does not meet the Title IX requirements, at 34
C.F.R. § 106.9, in that the University’s notice of nondiscrimination does not extend to
applicants. Moreover, the name and contact information for the University’s Title IX
Coordinator and notice that inquiries to recipients regarding Title IX and its implementing
regulation may be referred to the Title IX Coordinator or to OCR are not located on the same
subpage as the notice of nondiscrimination.
B.

Designation of a Title IX Coordinator

During the course of the investigation, the University corrected a Title IX violation regarding the
designation of a Title IX Coordinator.
When OCR initiated its investigation on February 26, 2014, the University had no designated
Title IX Coordinator. On March 21, 2014, the University named its HR Director as the Title IX
Coordinator, who served until October 1, 2015.
On October 1, 2015, the University appointed a Title IX Coordinator whose core responsibilities
include overseeing the University’s response to Title IX reports and complaints and identifying
and addressing any patterns or systemic problems revealed by such reports and complaints and
who has knowledge of all the complaints raising Title IX issues throughout the University, the
requirements of Title IX, and the University’s own policies and procedures on sex
discrimination. The Title IX Coordinator and several, but not all, Deputy Coordinators have
received four days of Title IX-specific training from qualified external providers.
21
22

http://www.minotstateu.edu/keepusafe/overview.shtml; http://www.minotstateu.edu/
http://www.minotstateu.edu/student_handbook.pdf; http://www.minotstateu.edu/enroll/apply.shtml

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The Title IX Coordinator is charged with overseeing all matters related to sex discrimination
against students and employees. In addition, the University has appointed Deputy Coordinators
to assist the Title IX Coordinator “with specialized areas and in the oversight of Title IX
matters,” including the development of policies and procedures, the development of training and
orientation materials for students and employees, the oversight of investigations of complaints of
sexual harassment and sexual assault and other forms of sex discrimination, the review of
complaints to identify patterns or systemic problems, the protection and safety of those reporting
violations, and compliance with the University’s obligations under the Clery Act.
C. Adoption and Implementation of Sexual Harassment or Sexual Assault Policies
and Procedures (34 C.F.R. §§ 106.8(b) and 106.9(a))
Based on its investigation, OCR determined that the University’s established policies and
procedures as written and as applied violate Title IX.
Former Policies, Procedures and Practices
The University’s Policies, though widely distributed in the Student Handbook and published
online, were not easily understood and, individually and collectively, were noncompliant with
Title IX in significant ways. As described above, the University’s Policies do not clearly identify
the individuals within the University to whom reports of sexual harassment and sexual assault
should be made. The Policies further fail to explain who within the University will conduct
investigations into such reports, and the procedures that will be followed in resolving them.
Further, the Policies did not make clear that they applied to alleged discrimination or sexual
harassment or sexual assault carried out by employees or third parties or that the University will
process all complaints of sexual harassment and sexual assault regardless of where the conduct
occurred to determine whether the conduct occurred in the context of an educational program or
had continuing effects on campus. The Policies did not set forth the manner in which reports of
sexual harassment and sexual assault could be made – identifying numerous on campus and off
campus offices or agencies to which a student could report alleged sexual harassment or sexual
assault. Although the Policy on Sexual Assault indicated that the VPSA would initiate an
investigation, the Policies did not contain designated and reasonably prompt timeframes for the
major stages of the process. In addition, HR Policy 1.1 allows the HR Director broad discretion
to extend the investigation of reports of sexual harassment to 120 days in “particular difficulties
or unforeseen circumstances,” and authorizes the disciplining administrator to disagree with
recommended discipline without providing criteria or standards to guide such a determination.
None of the policies required the University to provide periodic updates to complainants about
the status of the University’s response to the complaint. Further, although the Policy on Sexual
Assault identified several types of interim measures that the VPSA should provide to the

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complainant, the Policy on Harassment and the Student Complaint and Student Conduct Policy
do not identify and require the provision of interim measures, as appropriate. The Student
Conduct Policy provides the parties the opportunity during hearings to question anyone who
presents information, without providing process protections to ensure fair process for all parties.
Further, the VPSA stated that he allows parties to ask questions about past sexual history if
“relevant” to the case, which is only permitted when the questions relate to past sexual history
with the respondent, a limitation the VPSA did not acknowledge. Additionally such provisions
may pose a barrier to or discourage reporting and proceeding with sexual harassment or sexual
assault complaints. The Policies also did not provide written notice of the range of potential
remedies and sanctions. Finally, the Policies did not state that the University will take steps to
prevent the recurrence of sexual harassment and sexual assault or remedy its effects and did not
provide any protection from retaliation.
OCR considered whether the University applied its Policies properly, by examining its handling
of the reports of sexual harassment and sexual assault that it received while the Policies were in
effect. Between January 1, 2011, and the initiation of this investigation in February 2014, the
University received five reports of sexual harassment or sexual assault, including Student A’s
report. The University completed an investigation pursuant to its policies and procedures in only
one of five reports, thus failing to comply with the Title IX requirement that it take immediate
and appropriate steps to investigate or otherwise determine what occurred and take prompt and
effective steps reasonably calculated to end any harassment, eliminate a hostile environment if
one has been created, and prevent harassment from recurring.
In addition, the University did not provide Student A or Student B (nor any of the other students
who made reports in this time period) with any interim measures, such as counseling, academic
assistance, housing assistance, or appropriate, timely no contact orders; these failures violate
Title IX.
Finally, the University provided none of the affected students during this period with written
notice of a determination in their cases. This failure also violates Title IX.
iii. Current Policies, Procedures and Practices
The University’s Policy on Sexual Assault, Policy on Harassment, and Student Conduct Policy
remain unchanged. However, the University has created the Title IX Policy, which is widely
disseminated on its website, but not available in the Student Handbook.
The Title IX Policy clarifies the way in which students should report allegations of sexual
harassment or sexual assault, containing a link to a complaint form and a detailed explanation of
the manner in which the University will respond to a complaint, including a statement that it will
provide regular updates to complainants about the status of its response to the complaint. The

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Title IX Policy also provides a more thorough description of the interim measures available to
complainants; however the Title IX Policy does not describe interim measures that are made
available to respondents. In addition, the Title IX Policy makes clear that the University will
take steps to stop the harassment, prevent its recurrence, and remedy any discriminatory effects
of the harassment. The Title IX Policy also contains definitions of terms, such as consent,
coercion, intimidation, responsible employees, retaliation, sexual acts, sexual assault, sexual
discrimination, sexual exploitation, sexual harassment, and sexual misconduct.
Significantly, the Title IX Policy does not contain designated and reasonably prompt time frames
for major stages of the grievance process. The Title IX Policy also does not make clear that it
applies to conduct committed by third parties or that the University will process all complaints of
sexual harassment and sexual assault regardless of where the conduct occurred (on-campus and
off-campus) to determine whether the conduct occurred in the context of an educational program
or had continuing effects on campus. Finally, although the Title IX Policy defines retaliation, it
did not originally expressly prohibit retaliation; however, the revised Title IX Policy does
expressly prohibit retaliation.
The Title IX Policy’s provision for informal resolution fails to provide an equitable process to
accused students because the policy allows for the imposition of a penalty on an accused student
when the University has not conducted an independent investigation and has no basis for
determining whether a penalty is warranted and, if so, how significant the penalty should be.
Further, the University’s policies are confusing. The Policy on Sexual Assault, the Policy on
Harassment, the Student Conduct Policy, and HR Policy 1.1 are published online and (with the
exception of HR Policy 1.1) in the Student Handbook. However, the Title IX policy is not
contained in the Student Handbook. As noted above, the policies, collectively, are inconsistent
with each other in the way in which the reporting, investigatory, and hearing processes are
described.
OCR determined that in applying its policies, the University has not promptly and equitably
responded to allegations of sexual harassment and sexual assault about which it had notice.
Specifically, although the University conducted investigations into the 2014-15 reports of sexual
harassment or sexual assault of which it had notice, it issued written notice of its findings in only
one instance out of nine. In addition, although the Title IX Policy explains that formal reports of
sexual harassment or sexual assault will be resolved through the procedures set forth in the
Student Conduct Policy or H.R. Policy 1.1 depending on whether the person who carried out the
alleged sexual harassment or sexual assault is a student or an employee, the University did not
utilize procedures consistent with the procedures set forth in the Student Conduct Policy in
response to any of the 2014-15 reports of which it had notice. Instead, the University relied upon
the recommendation of its Title IX investigator.

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However, the University has offered and provided interim services, including counseling,
housing assistance, academic assistance, tuition waivers, and no-contact orders to students (and
non-students) who reported sexual harassment or sexual assault during the 2014-15 academic
year. In addition, the University consistently applied the preponderance of the evidence standard
in reaching determinations regarding allegations of sexual harassment and sexual assault during
the 2014-15 academic year. Finally, although the Title IX Policy does not specify that it applies
to conduct by third parties or that the University will process all complaints of sexual harassment
and sexual assault regardless of where the conduct occurred to determine whether the conduct
created a hostile environment on campus, OCR’s file review revealed that, after OCR initiated
this investigation, the University did investigate conduct by third parties and processed all
complaints of sexual harassment and sexual assault regardless of where the conduct occurred.
D. Response to sexual harassment or sexual assault complaints
Based on the evidence obtained, OCR determined that the University’s responses to complaints
of sexual harassment and sexual assault did not comply with the requirements of Title IX. OCR
further determined that the University designated staff to handle its responses to such complaints
who were not adequately trained to respond appropriately to reports of sexual harassment and
sexual assault.
i. Student A’s Complaint
As set forth above, the University did not promptly and equitably respond to Student A’s report
that Professor A sexually harassed and sexually assaulted her between June 2010 and May 2012,
when she graduated from the University. After it received notice of Student A’s complaint, the
University did not issue a no-contact order or offer Student A counseling services or any other
interim services. Finally, the University did not adjudicate Student A’s allegation utilizing
hearing procedures pursuant to University policies and did not issue a written notice of its
findings to Student A or Professor A.
Thus, the University did not provide a prompt and equitable response to Student A’s report in
that it did not provide written notice of the complaint to the respondent, did not complete an
investigation of the complaint, did not provide interim services, did not determine whether
Student A or the broader University community were subjected to a hostile environment as a
result of the reported conduct, and did not provide written notice of its findings to Student A or
Professor A. The University’s failure to offer interim services and its delayed and incomplete
response to her report could have created a hostile environment for Student A. As noted below,
the Resolution Agreement includes a provision requiring the University to offer appropriate
services to remedy the effects of the University’s inaction.

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ii. Student B’s Complaint
Based on the evidence in the file, OCR determined that the University’s response to Student B’s
report was prompt, in that it held a hearing 24 days after receiving Student B’s first report of
sexual harassment, but not equitable because, despite Student B’s six reports of sexual
harassment by Students C and D, the University took no interim measures to protect Student B
from Students’ C and D’s on-going sexual and retaliatory harassment, failed to offer to provide
Student B with resources to address the effects of their on-going harassment until a hearing was
held, failed to provide Student B with an equal opportunity to participate in the University’s
hearing and subsequently failed to provide her with written notice of the University’s
determination, her appeal rights, or information about the second hearing in this case. Although
the University initially determined that Student B was subjected to a hostile environment and ongoing harassment, expelling Students C and D, it ultimately reversed its determination despite
the lack of an appeal by Students C and D, and failed to provide Student B with notice of the
subsequent hearing and appeal, neither of which were convened or addressed consistent with the
University’s Policies. The University’s delay in issuing and enforcing an appropriate no-contact
order could have contributed to the continuation of a hostile environment for Student B in that
the sexual harassment continued from the date of her report (January 15, 2012) until February 8,
2012.
Further, the University did not provide an equitable process to Students C and D. The University
did not attempt to interview Student D at a time when he was not working. Further, there was no
documentation evidencing that the University interviewed Students C and D after Student B
reported additional incidents of harassment. The University imposed expulsion on both students
without having conducted an investigation that included an opportunity to hear Student D’s
account of events.
iii. Reports Filed Prior to the Implementation of the Title IX Policy
The University did not promptly and equitably respond to additional reports of sexual harassment
and sexual assault prior to OCR’s investigation and the University’s implementation of the Title
IX Policy.
The University received three additional reports of sexual harassment or sexual assault in the
three years prior to receiving notice of OCR’s investigation, and before it implemented the Title
IX Policy. In each instance, the University received a student incident or security incident report.
OCR found that the University’s failure to coordinate with its law enforcement personnel led to
Title IX violations because only one of four complaints of sexual harassment reported to campus
security offices actually led to a Title IX investigation. In addition, the University did not
provide interim measures to the complaining students, did not conduct a hearing pursuant to the
University’s procedures regarding the incidents, and did not provide the complaining students

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with written notice of its findings.
In sum, prior to implementing the Title IX Policy, the University did not provide a prompt
response to incidents of sexual harassment or sexual assault about which it had notice, did not
provide interim measures to harassed or accused students, did not investigate or otherwise
determine what occurred in three cases it received prior to OCR’s notice of investigation, and did
not provide written notice of its findings to any complaining students.
iv. Reports Filed After the Implementation of the Title IX Policy
The University did not promptly and equitably respond to reports of sexual harassment and
sexual assault after it adopted the Title IX Policy.
The University received nine reports of sexual harassment or sexual assault during the 2014-15
academic year. Although the University investigated each incident and consistently provided
interim measures to complaining students, the University did not comply with Title IX when it
did not provide written notice of the outcome of its investigation to one or both of the
complaining or accused students in eight of these nine cases.
In addition, OCR noted that the University did not follow its own policies and procedures in that
it did not utilize procedures consistent with its Student Conduct Policy, which states that the
VPSA will determine whether to provide hearings for Title IX complaints. The University
instead relied on the determination of a Title IX investigator. Although the Title IX regulations
do not require the University to provide a hearing to resolve reports of sexual harassment or
sexual assault, the University’s consistent deviation from its own policies and procedures raises a
concern that it does not accurately describe to potential complainants the process that it in fact
provides to students who report incidents of sexual harassment or sexual assault.
Finally, OCR found that in two instances where the complainant did not wish for the University
to pursue an investigation, one of which involved an alleged rape by another student in a
University dorm room, the University failed to consider whether the complainant’s request could
be honored while still providing a safe and nondiscriminatory environment for all students.
CONCLUSION
OCR found that at the outset of the investigation, the University had not designated a Title IX
Coordinator and that its sexual harassment or sexual assault policies and procedures did not
comply with Title IX. Although the University has since designated and adequately trained a
Title IX Coordinator, its sexual harassment or sexual assault policies and procedures remain in
violation of Title IX. Further, OCR determined that the University violated Title IX when it did
not promptly and equitably respond to reports of sexual harassment and sexual assault that it

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OCR Docket #05-14-2061

received, including by failing to determine whether the complainants were subjected to a hostile
environment. The University did not adjudicate an allegation of sexual harassment or sexual
assault utilizing hearing procedures pursuant to University Policies, and did not issue a written
notice of its findings to Student A. In addition, the University consistently failed to provide
written notice of its findings to students who reported sexual harassment or sexual assault.
To resolve the complaint allegation and the above-described Title IX compliance determinations,
the University agreed to enter into a resolution agreement (the Agreement) with OCR on June 24,
2016. Under the Agreement, the University agreed to take the following specific actions to
address the violations of Title IX and ensure that it does not discriminate based on sex in the
future:
•

Retain an equity consultant with expertise in all areas of compliance with Title IX, who
will work with designated University employees with expertise in Title IX and the
prevention of sexual harassment and sexual assault on college campuses and training in
higher education.

•

Issue a statement to the University community, including students, parents, administrators
and staff, that it does not tolerate sexual harassment and sexual assault, encouraging any
student who believes he or she has been subjected to sexual harassment or sexual assault
to report the incident(s) to the University, and informing the community how to report the
incident.

•

Review and revise its sexual harassment and sexual assault policies and procedures and
its code of conduct, including its notice of nondiscrimination and grievance procedures,
to ensure that they adequately address incidents of sexual harassment or sexual assault
and provide for the prompt and equitable resolution of sexual harassment and sexual
assault complaints.

•

Provide effective training to staff, including Title IX Coordinators and investigators,
security officers, athletic coaches, residence and housing staff, administrators, faculty,
and other staff, on the University’s revised sexual harassment and sexual assault policies
and procedures and provide investigation training to staff who are directly involved in
handling complaints or other reports of sexual harassment and sexual assault.

•

Conduct an assessment to determine whether it has sufficient staff to investigate and
address Title IX complaints in a timely manner and add staff as needed to avoid delays in
the investigative and appeals process.

•

Provide annual training on topics related to sexual harassment and sexual assault to all
students.

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OCR Docket #05-14-2061

•

Develop a procedure to document each incident or complaint (formal or informal) of
discrimination on the basis of sex (including sexual harassment and sexual assault)
received by the University and maintain documents relating to reports of sexual
harassment and sexual assault.

•

Develop a monitoring program to assess the effectiveness of the University’s overall Title
IX anti-discrimination efforts.

•

Periodically review the Memorandum of Understanding with the Minot Police
Department to improve communication and coordination regarding reports of sexual
harassment and sexual assault and develop a written protocol that outlines how the Title
IX Coordinator and the police department will notify each other about such reports.

•

Create a committee that includes a wide cross section of the University community to
identify strategies for ensuring that students understand their rights under Title IX, and
how to report possible violations of Title IX, including complaints of sexual harassment
and sexual assault.

•

Conduct periodic climate checks to assess the effectiveness of steps taken pursuant to this
Agreement, or otherwise by the University, to provide for a campus free of sexual
harassment and sexual assault.

•

Review prior reports of sexual harassment and sexual assault, including Students A and
B’s reports, to determine whether the University investigated each complaint or report
promptly and equitably, and take appropriate action to address any problems it identifies
regarding how these complaints were handled.

OCR will monitor the University’s implementation of the Agreement until the University is in
compliance with the statutes and regulations at issue in this case. The full and effective
implementation of the Agreement will address all of OCR’s Title IX compliance findings. OCR
received an initial monitoring report from the University on June 28, 2016, and anticipates
receiving additional reports. 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 Resolution Agreement, OCR will give the
University written notice of the alleged breach and sixty (60) calendar days to cure the breach.
This concludes OCR’s investigation of the complaint and should not be interpreted to address the
University’s compliance with any other regulatory provision or to address any issues other than
those addressed in this letter. This letter sets forth OCR’s determination in an individual OCR

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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 policy statements are approved by a duly authorized OCR
official and made available to the public.
Please be advised that the University may not harass, coerce, intimidate, or discriminate against
any individual because he or she has filed a complaint or participated in the complaint resolution
process. If this happens, the individual may file a complaint alleging such treatment. The
Complainant may also file a private suit in federal court whether or not OCR finds a violation.
Under the Freedom of Information Act, it may be necessary to release this document and related
correspondence and records upon request. In the event that OCR receives such a request, we will
seek to protect, to the extent provided by law, personally identifiable information, which, if
released, could reasonably be expected to constitute an unwarranted invasion of personal privacy.
We wish to thank you for the cooperation extended to OCR during our investigation. In
particular, we thank you, the University’s attorney, Noah Brisbin, and staff for their assistance
throughout OCR’s investigation. If you have any questions, please do not hesitate to contact
Aleeza Strubel, Supervisory Attorney at 312-730-1613, or by e-mail at Aleeza.Strubel@ed.gov.
Sincerely,
/s/

Adele Rapport
Regional Director