December 20, 2016
Dr. Norman Smith
President
Elmira College
One Park Place
Elmira, New York 14901
Re:

Case No. 02-14-2316
Elmira College

Dear President Smith:
This letter is to inform you of the determinations made by the U.S. Department of Education,
Office for Civil Rights (OCR), based on its investigation of the above-referenced complaint filed
against Elmira College (the College). OCR investigated whether the College failed to promptly
and equitably respond to the Complainant’s complaint of a forcible sexual assault made against
another student (Student 1), and other complaints of sexual harassment, including sexual assault
and sexual violence, of which it had notice; and whether as a result, the Complainant and other
students were subjected to a sexually hostile environment.
OCR investigated this complaint under the authority of Title IX of the Education Amendments of
1972 (Title IX), as amended, 20 U.S.C. § 1681 et seq., and its implementing regulation at 34
C.F.R. Part 106, which prohibit discrimination on the basis of sex in education programs and
activities receiving financial assistance from the U.S. Department of Education (the Department).
The College is a recipient of financial assistance from the Department. Therefore, OCR has
jurisdictional authority to investigate this complaint under Title IX.
Legal Overview
The regulation implementing Title IX, at 34 C.F.R. § 106.31, provides generally that, except as
provided elsewhere in the regulation, “no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any . . .
education program or activity” operated by recipients of Federal financial assistance.
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

 Page 2 of 22 – Dr. Norman Smith, President
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.
The regulation implementing Title IX, at 34 C.F.R. §§ 106.8 and 106.9, requires a recipient to
designate a Title IX Coordinator, adopt grievance procedures, and implement specific and
continuing steps to provide notice that it does not discriminate on the basis of sex in its education
programs or activities.
These regulatory provisions are discussed in more detail below, issue by issue.
Summary
OCR determined that the College’s Title IX grievance procedures, effective for academic year
2015-2016, meet the requirements of Title IX; however, OCR noted a concern about what the
grievance procedures mean regarding the need to have “authority over the potential violator” in
order to investigate, and whether this would prevent the College from pursuing a complaint if,
for instance, the respondent was no longer enrolled in the College. For the reasons briefly stated
below, and discussed further in this letter, OCR also identified violations of the regulation
implementing Title IX with respect to the College’s designation of a Title IX Coordinator and its
notice of non-discrimination.
OCR found that the College’s response to the Complainant violated Title IX because it was not
prompt. The College took approximately four months to complete its investigation and deliver
the outcome of that investigation to the Complainant and Student 1. OCR determined that the
College conducted an equitable investigation into the Complainant’s report of sexual assault in
that it provided the parties an equal opportunity to present relevant witnesses and other evidence
during its investigation. The College appropriately applied the preponderance of evidence
standard and concluded that the Complainant had been subjected to sexual harassment, but not
unwanted sexual intercourse. OCR found insufficient evidence that the Complainant continued
to be subjected to a sexually hostile environment due to the College’s failure to conduct a prompt
investigation. OCR’s review of other case files revealed either a violation or a concern in all but
one of the 16 case files reviewed from academic years 2012-2013, 2013-2014, and 2014-2015,
including instances where the College failed to provide prompt and equitable investigations and
took insufficient measures to assess and address the impact of harassment and possible hostile
environments, as detailed below.
On December 14, 2016, the College executed a Resolution Agreement to resolve the issues and
concerns OCR identified during its investigation.
This letter summarizes OCR’s findings. For each issue, OCR states the applicable legal
standards, the evidence gathered during the investigation, and OCR’s determinations.

 Page 3 of 22 – Dr. Norman Smith, President
Background Information
The College is located in Elmira, New York. During academic year 2015-2016, there were
approximately 1,376 students, including both undergraduate and graduate students, enrolled at
the College. Undergraduate enrollment was approximately 70% female and 30% male.
OCR reviewed the College’s campus crime statistics and security information provided pursuant
to the Jeanne Clery Disclosure of Campus Security Policy and Crime Statistics Act (the Clery
Act), which is reported by calendar year.1 Accordingly to Clery Act data, in 2012 and 2013,
there were two forcible sexual offenses reported in each year; and in 2014, there were five rapes
reported.2
The Complainant filed her complaint with OCR on April 7, 2014. She alleged that the College
failed to respond appropriately to a complaint of forcible sexual assault that she made against
Student 1 on or about October 28, 2013.
During the investigation, OCR reviewed documentation that the Complainant and the College
submitted, including the College’s policies and procedures. OCR also interviewed the
Complainant and College personnel, including its Title IX Coordinator and Interim Dean of
Student Life. In addition, OCR reviewed the College’s handling of individual complaints of
sexual harassment made in academic years 2012-2013, 2013-2014, and 2014-2015. OCR also
conducted focus groups with students at the College.
Designation and Notice of a Title IX Coordinator
The regulation implementing Title IX, at 34 C.F.R. § 106.8(a), requires each recipient to
designate at least one employee to coordinate its efforts to comply with and carry out its
responsibilities under the regulation implementing Title IX, including investigation of any
complaint communicated to the recipient alleging any actions which would be prohibited by the
regulation implementing Title IX. It also requires each recipient to notify all of its students and
employees of the name, office address and telephone number of the employee or employees so
designated.
OCR determined that the College has designated the Director of Institutional Research as its
Title IX Coordinator. The College’s “Title IX Policy” brochure and “Policy Against Gender
Discrimination and Sexual and Other Misconduct” included the Title IX Coordinator’s name,
title, telephone number, and electronic mail (email) address, but did not provide her office
address. The College’s website included the Title IX Coordinator’s name, title, telephone
number, email address, and office address in a section of the College’s website titled, “Student
Consumer Information,” but did not provide her office address in a section of the website titled,
“Sexual Misconduct Information, Resources.”3
1

Data for calendar year 2015 had not yet been reported as of November 15, 2016.
The category of forcible sexual offenses was eliminated in 2014; instead, it was broken down into types of forcible
sexual offenses, including rape.
3
See http://www.elmira.edu/Student/Offices_Resources/Student_Consumer_Information.html and
http://www.elmira.edu/Student/Offices_Resources/Sexual%20Misconduct%20Information/Resources.html (last
visited July 7, 2016).
2

 Page 4 of 22 – Dr. Norman Smith, President
Based on the foregoing, OCR determined that the College has designated at least one person to
coordinate its efforts to comply with and carry out its responsibilities under the requirements of
Title IX; however, the College failed to effectively notify all students and employees of the
office address of the designated Title IX Coordinator, as required by 34 C.F.R. § 106.8(a).
Accordingly, OCR determined that the College is in violation of the regulation implementing
Title IX, at 34 C.F.R. § 106.8(a).
Notice of Non-Discrimination
The regulation implementing Title IX, at 34 C.F.R. § 106.9(a), requires each recipient to
implement specific and continuing steps to notify applicants for admission and employment,
students and parents of elementary and secondary school students, 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 the educational program or activity which it operates, and that
it is required by Title IX and this part not to discriminate in such a manner. Such notification
shall state at least that the requirement not to discriminate in the education program or activity
extends to employment therein, and to admission thereto, unless Subpart C does not apply to the
recipient, and that inquiries concerning the application of Title IX and this part to such recipient
may be referred to the employee designated pursuant to § 106.8, or to OCR’s Assistant
Secretary. Section 106.9(b) requires each recipient to include the notice of non-discrimination in
each announcement, bulletin, catalog, or application form which it makes available to the types
of persons described in § 106.9(a), or which is otherwise used in connection with the recruitment
of students or employees.
The College includes a non-discrimination notice in its College Bulletin (course catalog), on the
"Employment Opportunities" page of the College's website, on its employment application, in its
Employee Handbook, and in online student policies, including the Student Handbook, as well as
other locations on the College's website.4 The notice in each of these places states: “In
compliance with Title IX of the Education Amendments of 1972 and the Age Discrimination Act
of 1975, and other state, federal, and local laws, Elmira College does not discriminate on the
basis of age, color, race, gender, sexual orientation, religion, national origin, or disability in any
phase of its employment process, and of its admission or financial aid programs, or any aspects
of its educational programs or activities.” The non-discrimination notice does not state that the
College does not discriminate on the basis of sex, or that inquiries concerning the application of
Title IX and its implementing regulation may be referred to the Title IX Coordinator or to OCR’s
Assistant Secretary.
Based on the foregoing, OCR determined that the College’s notice of non-discrimination does
not comply with the requirements of the regulation implementing Title IX, at 34 C.F.R. § 106.9.
Specifically, the notice does not state that the College does not discriminate on the basis of sex,
and that inquiries concerning the application of Title IX and its implementing regulation may be
referred to the Title IX Coordinator or to OCR’s Assistant Secretary.

4

For example, the non-discrimination notice is published on a section of the College’s website titled “Procedures for
Requests.” (last visited July 7, 2016)

 Page 5 of 22 – Dr. Norman Smith, President
Grievance Procedures
The regulation implementing Title IX, at 34 C.F.R. § 106.8(b), requires that a recipient adopt and
publish grievance procedures providing for the prompt and equitable resolution of student and
employee complaints alleging any action prohibited by the regulation implementing Title IX.
OCR has identified a number of elements necessary in evaluating if grievance procedures are
prompt and equitable, including whether the procedures provide for: (a) notice to students and
employees of the procedures, including where complaints may be filed, that is easily understood,
easily located, and widely distributed; (b) application of the procedures to complaints alleging
discrimination or harassment carried out by employees, students, and third parties; (c) adequate,
reliable, and impartial investigation, including an equal opportunity to present witnesses and
evidence; (d) designated and reasonably prompt timeframes for major stages of the grievance
process; (e) notice to parties of the outcome and any appeal; and, (f) an assurance that the
recipient will take steps to prevent further harassment and to correct its discriminatory effects on
the complainant and others, if appropriate.5
The regulation implementing Title IX does not require a recipient to provide separate grievance
procedures for sexual harassment complaints; however, a recipient’s grievance procedures for
handling all types of sex discrimination complaints must comply with the prompt and equitable
requirements of the regulation implementing Title IX. Recipients should ensure that
complainants are aware of their Title IX rights and any available resources, such as counseling
services, and their right to file a complaint with local law enforcement.
To ensure individuals can invoke grievance procedures without fear of reprisal, the regulation
implementing Title IX prohibits the recipient and others, including students, from retaliating
against any individual “for the purpose of interfering with any right or privilege secured by [Title
IX],” or because that individual “has made a complaint, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing” under Title IX. 34 C.F.R. § 100.7(e)
(incorporated by reference through 34 C.F.R. § 106.71). Prohibited retaliatory acts include
intimidation, threats, coercion, or discrimination against any such individual. At a minimum,
recipients therefore should take steps to prevent any retaliation against a student who makes a
complaint or any student who provides information regarding the complaint, and must ensure
that complainants and their parents/guardians, if appropriate, know how to report any subsequent
problems, and should follow up with such individuals to determine whether any retaliation or
new incidents of harassment have occurred.
Pending the outcome of an investigation, Title IX requires a recipient to take steps to protect the
complainant from further harassment as necessary, including taking interim steps before the final
outcome of the investigation.
As of the date of this letter, the College relies upon one document for its Title IX grievance
procedures, entitled “Policy Against Gender Discrimination and Sexual and Other Misconduct”
(the Policy). The Policy was last updated during academic year 2015-2016.
5

For further explanation, see generally OCR’s Revised Sexual Harassment Guidance: Harassment of Students by
School Employees, Other Students, or Third Parties, at: http://www.ed.gov/about/offices/list/ocr/docs/shguide.html
(Jan. 19, 2001) [hereinafter “2001 Guidance”].

 Page 6 of 22 – Dr. Norman Smith, President
The Policy applies to all students, faculty, staff, and “non-community members.”6 It applies to
conduct on campus as well as in connection with any College-sponsored activity, regardless of
its location, and is available on the College’s website.7 Complainants have the right to make a
report to Campus Security, one of the “Responsible Administrators” listed in the Policy, 8 local
law enforcement and/or the New York State Police, or to choose not to report. Complaints can
be made directly by victims, by third parties on behalf of victims, or anonymously. As long as
the College “has authority over” the potential violator (the respondent), there is no time limit for
filing a complaint; however, the College encourages complainants to file reports as soon as
possible to maximize the College’s ability to respond effectively. The preponderance of the
evidence standard applies to complaints of sexual misconduct under Title IX, and complainants
are protected from retaliation.
Once a Responsible Administrator receives a complaint, s/he will discuss with the complainant
the available options for proceeding, including discipline against the respondent; remedial
actions to correct the effects of the misconduct; interim measures to separate the complainant and
respondent in academic, residential, or work settings; and other measures to enhance security.
The Responsible Administrator will share with the Title IX Coordinator all information s/he
collects.
The College may take interim measures to respond immediately to a complaint, including
changing housing, academic schedules, and/or work assignments; providing transportation;
removing the complainant’s information from the College directory; issuing a no contact order;
and providing escorts or increased monitoring. The College may also issue a suspension pending
the outcome of an investigation.
Both the complainant and the respondent are allowed to have an advisor of their choice
accompany them to any investigatory meeting; however, unless the complaint involves sexual
assault, domestic or dating violence, or stalking, the advisor must be a non-attorney member of
the campus community. The advisor serves only a supporting role; the advisor is not permitted
to speak to the investigators at any meetings.
Mediation is allowed for certain kinds of complaints, but mediation is not allowed for complaints
of sexual assault or other violence, or where a student is complaining about conduct by an
employee in a position of authority over that student. Either party can request mediation;
however, both parties must agree to participation in mediation, and the Title IX Coordinator must
also agree that mediation is appropriate under the circumstances. Either party has the right to
end the mediation at any point. A third-party mediator must conduct the mediation and report to
the Title IX Coordinator that the mediation occurred. If the parties reach an agreement, that
agreement is subject to the Title IX Coordinator’s approval.
6

The Policy does not provide an exhaustive definition of “non-community members,” but rather cites alumni,
family of students, and vendors as examples of individuals who fall into this category.
7
See http://elmira.edu/Student/Offices_Resources/Sexual%20Misconduct%20Information/index.html (last visited
July 7, 2016).
8
The Policy lists the following “Responsible Administrators”: The Title IX Coordinator, the Director of Campus
Security, the Director of Resident Life, the Dean of Student Life, the Vice President of Enrollment Management,
and the Vice President of Athletics.

 Page 7 of 22 – Dr. Norman Smith, President
Once an investigation begins, the Title IX Coordinator appoints a team of internal Title IX
investigators, who will contact and meet with each party to discuss the investigation procedures.
Each party receives a notice listing the alleged violations of the Policy, as well as the date, time,
location, and factual allegations underlying the alleged violations. The investigative process
includes interviews of the parties and other witnesses, as well as collection and review of other
evidence. Each party has an equal opportunity to present information to the investigators, as
well as an equal opportunity to review, upon request, information in the case file on campus.
The Policy outlines the rights of each party throughout the process.
At the end of the investigation, the investigators must issue a written report and submit it to the
appropriate person (the decision maker), depending on whether the respondent is a student,
faculty member, other employee, or third party.9 The decision maker may accept or reject the
investigators’ findings and recommendations, send the matter back for reconsideration, or issue
his/her own determination. The decision maker reviews the investigators’ findings and
recommendations based on a preponderance of the evidence standard. If the decision maker
determines that the respondent violated the Policy, and if the complainant or respondent is a
student, then both parties are allowed to submit a written impact statement to the Title IX
Coordinator. The decision maker reviews the impact statements and determines sanctions.10
Any College employee or faculty member found to have engaged in misconduct by the decision
maker is subject to a range of discipline depending on the circumstances of each case.11
The College will send written notification of all determinations to each party. Either party may
appeal the determination, unless the party is not a student or College employee. The Policy
outlines three grounds on which an appeal may be filed.12 The person designated to review the
appeal may accept, reject, or modify any findings or sanctions, and will issue a written decision
regarding the appeal, based on the preponderance of the evidence standard.13
The College will take reasonable and appropriate remedial action to prevent sexual misconduct,
eliminate a hostile environment, prevent its recurrence, and correct its discriminatory effects on
the complainant and others. The College’s investigation and resolution of a complaint,
9

If the respondent is a student, then the Dean of Student Life will review the finding and recommendations of the
investigatory team and make a final determination, including issuing appropriate sanctions. If the respondent is a
faculty member, then the Associate Dean of Faculty has this authority. If the respondent is another type of
employee, the Director of Human Resources has this authority. If the respondent is a third party, then the Director
of Campus Security or other College administrator (as designated by the Title IX Coordinator) has this authority.
10
A student found to have engaged in misconduct is subject to a range of sanctions depending on the circumstances
of each case. Those sanctions can include written warnings, educational programs, education assignment, mandatory
referral to the Clarke Health Center (or other appropriate healthcare provider), a fine, suspension, expulsion, referral
to other disciplinary bodies, and other sanctions as may be deemed reasonable by the College under the
circumstances.
11
That discipline can include termination, referral to other disciplinary bodies, or other sanctions as may be deemed
appropriate by the College.
12
Appeals will be permitted only for claims of procedural error (including issues relating to the adequacy of any
investigation), new evidence which was not reasonably available at the time of the investigation and decision, or
because any sanction imposed (or the failure to impose a sanction) is claimed to be inappropriate.
13
Where the accused is a student, the appeal will be considered by a panel consisting of the Vice President of
Enrollment Management and two other College officials appointed by the Title IX Coordinator. Where the accused
is a faculty member, the appeal will be sent to Vice President of Academic Affairs; and where the accused is a nonfaculty employee, the appeal will be sent to the Vice President of Finance and Administration.

 Page 8 of 22 – Dr. Norman Smith, President
excluding an appeal, normally will not exceed 60 calendar days; however, this timeframe may be
extended based on the nature of the complaint, or because of extenuating circumstances such as
the time in the academic year and College breaks and the effect of concurrent criminal
proceedings. The investigation itself will typically be completed within 14 days of receipt of the
complaint, and the decision maker will typically complete his/her review of the investigative
findings within 14 days thereafter. The parties have ten days from the date of the written
determination to file an appeal. The appeal officer then has ten days to render a determination on
the appeal.
Confidential resources are listed, both on and off-campus. On-campus confidential resources
include the College’s Health Services, Counseling Services, and Office of Retention and
Advocacy. Off-campus confidential resources include local medical providers, hotlines, and
counseling services. Individuals who are unsure of whether they wish to file a formal complaint
may still seek help from a confidential resource, and doing so does not constitute reporting to the
College or otherwise obligate the individual to file a formal complaint.
For situations in which a complainant reports an incident to a Responsible Administrator but then
requests confidentiality or requests that the College not investigate or take other responsive
action, the Policy emphasizes that Responsible Administrators are not confidential resources. If
a complainant who reports a violation to a Responsible Administrator requests that the College
not conduct an investigation or take disciplinary action, the College may decide not to honor that
request, depending on the circumstances. The College will similarly consider a complainant’s
request for confidentiality or anonymity, but may not honor such a request, depending on
whether it can proceed with an investigation without revealing the complainant’s identity. If the
College receives an anonymous complaint, it will investigate the complaint and take action to the
extent practicable.
Based on the foregoing, OCR determined that the College’s current Title IX grievance
procedures, effective for academic year 2015-2016, are compliant with the regulation
implementing Title IX. Specifically, the current Title IX grievance procedures provide for: (1)
notice to students and employees of the grievance procedures, including where complaints may
be filed; (2) application of the grievance procedures to complaints alleging discrimination or
sexual harassment or assault/violence carried out by employees, other students, or third parties;
(3) provisions for adequate, reliable, and impartial investigation of complaints, including the
opportunity for both the complainant and alleged perpetrator to present witnesses and evidence;
(4) designated and reasonably prompt time frames for the major stages of the complaint process;
(5) notice to the complainant and alleged perpetrator of the outcome of the complaint; and (6)
assurance that the College will take steps to prevent recurrence of any sexual violence and
remedy discriminatory effects on the complainant and others, if appropriate. OCR noted a
concern about what the grievance procedures meant regarding the need to have “authority over
the potential violator” with regard to the time limits for filing a complaint, and whether this
would prevent the College from pursuing a complaint if, for instance, the respondent was no
longer enrolled. The current procedures specify that the “preponderance of the evidence”
standard applies to complaints of sexual misconduct, explains that complainants are protected
from retaliation, and describes interim measures the College may provide to respond
immediately to complaints.

 Page 9 of 22 – Dr. Norman Smith, President
In addition, the current procedures advise students about their right to file concurrent complaints
with law enforcement or choose not to file; the option of mediation, except for complaints of
sexual assault, sexual violence, or where a student is complaining about an employee who has
authority over that student, and the right to end the mediation at any point; the availability of
confidential resources, both on and off-campus; and the circumstances under and extent to which
the College will investigate even where confidentiality has been requested.
Handling of Criminal Complaints/Law Enforcement’s Role
As noted above, a recipient must provide a prompt resolution of complaints under Title IX
pursuant to 34 C.F.R. § 106.8(b). The regulation does not provide an exception for the recipient
to perform its duty in the event that law enforcement activities are also occurring. OCR
requested that the College provide copies of any Memorandum of Understanding (MOU) it had
with local law enforcement. The College did not provide a copy of a MOU in response.
The Policy states that the College encourages complainants to report alleged sexual misconduct
to local law enforcement, and provides contact information for the local police department. It
explains that a complaint filed with the College is processed separately from any related criminal
investigation or proceeding, and that a complainant can file a complaint with either the College
or law enforcement, or both. It also notes that the standards for finding a violation under the
Policy and under criminal law are different.
The Policy states that any internal investigation the College conducts will proceed concurrently
with any criminal investigation or proceeding. The College may temporarily delay its
investigation to enable law enforcement to gather evidence; however, such delays will not last
longer than ten days unless law enforcement authorities specifically request and justify a longer
delay.
The Policy further explains that law enforcement may issue an order of protection, including one
that restricts the respondent’s right to enter the College’s property. The College will abide by the
terms of any lawfully issued order of protection, and will also provide assistance to individuals
who seek to obtain an order of protection.
OCR determined that the written grievance procedures will help the College provide prompt and
equitable resolutions when there are concurrent investigations by law enforcement agencies also
responding to complaints of sexual assault and violence; however, OCR strongly encourages,
and the College has agreed to request, a MOU with local law enforcement to improve
communication and coordination and to address the protocols and procedures for referring
allegations of sexual violence, sharing information, and conducting contemporaneous
investigations.
Training
As previously discussed, the regulation implementing Title IX requires both the designation of a
Title IX Coordinator and grievance procedures that provide for the prompt and equitable

 Page 10 of 22 – Dr. Norman Smith, President
resolution of complaints. One means to ensure these measures are effective is for recipients to
provide training to responsible employees, including the Title IX Coordinator, and to students.14
OCR determined that all College employees, including the Title IX Coordinator, receive
mandatory sexual harassment prevention training annually. In addition, during academic year
2013-2014, the College’s Title IX Coordinator participated in a comprehensive, interactive oneday training developed by two higher education attorneys with practice expertise in Title IX.
Prior to attending the training, the Title IX Coordinator and other attendees were required to
view three video sessions describing the basic legal requirements of Title IX, required policies
and trainings, and legally compliant response strategies. At the training, attendees were asked to
apply the video session information to seven different workshop sessions relating to various
elements of Title IX compliance. The Title IX Coordinator advised OCR that this training
informed the College’s work in overhauling its Title IX grievance procedures following
academic year 2013-2014.
The College informed OCR that each year during its new student orientation, it hosts an
interactive workshop for students. The workshop focuses on sexual and gender-based
misconduct; the role of societal pressures, gender stereotypes, and alcohol in such incidents; and
bystander intervention training. Beginning with its orientation for Summer Session 2014, the
College has distributed a booklet to new students that contains detailed information about the
College’s sexual harassment and assault policies and procedures. Also, as of the orientation for
Summer Session 2014, the College has included detailed information on its sexual harassment
and sexual assault policy and procedures in its Parent Information booklet, which it distributes to
parents in person or by mail. The College informed OCR that Residence Life staff in each firstyear dormitory meets with first-year students at the start of each academic year to review the
Student Handbook, including specifically the harassment and assault policies and procedures.
Additionally, each fall the College has a local organization provide an interactive workshop for
all students about sexual assault awareness and prevention.
OCR identified no concerns in connection with the College’s training efforts under Title IX. As
the College takes the actions required in the resolution agreement to address compliance issues
OCR identified, OCR will monitor to ensure that the College continues to provide annual
training to staff and informational sessions to students to ensure that the College effectively
addresses sexual harassment incidents on campus.
Climate Assessment/Outreach
OCR staff conducted two focus groups on the College’s campus. On those dates, OCR also
provided an opportunity for members of the College community to meet with OCR staff
individually. The focus group sessions included College administrators, staff and students.
Students expressed concern that the College had not done enough to build awareness about
sexual harassment and sexual assault in its campus community. As an example, students stated
14

The importance of training is explained more fully in the 2001 Guidance at pages 13-14, 19, and 21; see also
OCR’s “Questions and Answers on Title IX and Sexual Violence” (April 29, 2014) [hereinafter “Title IX Q&A”], at
Questions J-1 to J-3.

 Page 11 of 22 – Dr. Norman Smith, President
that the College put up Title IX awareness posters only three weeks prior to OCR’s visit, as the
academic year was already winding down. Students also voiced concern about the College’s
response to sexual assault complaints, stating that the College: (a) makes it difficult for students
who wish to file complaints to understand to whom they should report their concerns; (b)
generally seeks to downplay complaints that it does receive, including discouraging students
from filing police reports; and (c) administers a weak sanction even when it determines that a
student has committed a sexual assault. Students expressed a concern about the overall campus
climate, explaining that because it is a small school, gossip spreads quickly. Finally, students
reported concerns about online harassment within the campus community, through the
anonymous messaging application Yik Yak and a “Campus Chatter” forum on the College’s
Student Life website. Not all of the harassment described was sexual in nature.
College administrators and staff were also engaged in the focus group discussions. The
administrators acknowledged problems with the College’s procedures in the past, but asserted
that the College was trying to improve the situation. During the focus group sessions, the
College’s Title IX Coordinator admitted explicitly that there were problems with how the
College had addressed Title IX issues in the past, but stated that the College is now improving.
Record Keeping Practices
The College is required to meet its legal obligation to comply with the record-keeping provisions
of the regulation implementing Title IX.15 A recipient is required to make available to OCR
information that may be pertinent to reach a compliance determination. OCR determined that
the College was inconsistent in maintaining complete records of investigations for the time
period for which OCR reviewed files, academic years 2012-2013, 2013-2014 and 2014-2015.
For example, in several cases, the College did not maintain (or provide to OCR) adequate
documentation of material information ascertained during its investigations. Some of the
information not included in the files is identified in case discussions below, including a lack of
documentation as to whether the College consistently offered and provided appropriate interim
measures. The absence of complete records means that relevant information was not available to
OCR during its investigation to assess whether the College is carrying out its legal obligations
under the regulation implementing Title IX. OCR reviews pertinent practices and policies of the
College, the circumstances in which the noncompliance occurred, and other factors relevant to a
determination of whether the College is in compliance with Title IX.
The College’s Response to Complaints of Sexual Harassment/Violence
The regulation implementing Title IX, at 34 C.F.R. § 106.31(a), provides that no person shall, on
the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity operated by a recipient. Sexual
harassment that creates a hostile environment is a form of sex discrimination prohibited by Title

15

The regulation implementing Title VI, at 34 C.F.R. § 100.6(b) and (c), requires that a recipient of Federal
financial assistance make available to OCR information that may be pertinent to reach a compliance determination.
This requirement is incorporated by reference in the regulation implementing Title IX at 34 C.F.R. § 106.71

 Page 12 of 22 – Dr. Norman Smith, President
IX. Sexual harassment creates a hostile environment if the conduct is sufficiently serious that it
denies or limits a one’s ability to participate in or benefit from the recipient’s program.16
In determining whether the sexual harassment of a student was sufficiently serious such that it
denied or limited the student’s ability to participate in or benefit from the recipient’s program,
OCR examines all of the relevant circumstances from an objective and subjective perspective,
including: the type of harassment (e.g., whether it was verbal or physical), the frequency and
severity of the conduct, the age and relationship of the individuals involved (e.g., teacher-student
or student-student), the setting and context in which the harassment occurred, whether other
incidents have occurred at the college or university, and other relevant factors. The more severe
the conduct, the less need there is to show a repetitive series of incidents to prove a hostile
environment, particularly if the harassment is physical. For example, a single instance of rape is
sufficiently severe to create a hostile environment.
If a recipient knows or reasonably should have known about sexual harassment that creates a
hostile environment, Title IX requires a recipient to take immediate and appropriate action to
investigate or otherwise determine what occurred. If an investigation reveals that discriminatory
harassment has occurred, a recipient must take prompt and effective steps reasonably calculated
to end the harassment, eliminate any hostile environment and its effects, and prevent the
harassment from recurring. 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.
Additionally, under Title IX, a recipient must process all complaints of sexual violence,
regardless of where the conduct occurred, to determine whether the conduct occurred in the
context of an education program or activity or had continuing effects on campus or in an offcampus education program or activity. Further, once a school is on notice of off-campus sexual
harassment against a student, it must assess whether there are any continuing effects on campus
or in an off-campus education program or activity that are creating or contributing to a hostile
environment; and, if so, address that hostile environment in the same manner in which it would
address a hostile environment created by on-campus misconduct.
Complainant’s Case
Approximately one and a half months prior to the incident that formed the basis of the complaint
filed with OCR, on September 7, 2013, a resident assistant (RA) witnessed a confrontation
between the Complainant and Student 1 in a dormitory stairwell (Incident 1). The RA observed
that Student 1 was holding the Complainant’s wrist and shaking it. The RA filed an incident
report, in which she described the confrontation and a conversation she had with the
Complainant shortly after the incident. The Complainant advised the RA that she and Student 1
were in a relationship, and Student 1 was “very abusive.” The RA asked the Complainant if
Student 1 was ever physically abusive, and the Complainant responded, “No, he is very
emotionally abusive.” In response to Incident 1, within two days, the College referred the
Complainant for counseling, as an offer of support. Further, within three weeks, the College
conducted an administrative hearing for Incident 1, which it classified as “physical abuse.” On
16

For further explanation, see 2001 Guidance, at Section V.A., page 5.

 Page 13 of 22 – Dr. Norman Smith, President
September 30, 2013, the College notified Student 1 that he had been found responsible for
violating the College’s physical abuse policy, and as a result, was placed on disciplinary
probation until April 11, 2014. The College advised OCR that when responding to Incident 1, it
was unaware that the Complainant had previously experienced what she considered unwelcome
sexual contact with Student 1.17 The Complainant’s relationship with Student 1 continued after
Incident 1, through September and October 2013.
According to a College Campus Security Incident Report, approximately one month after the
hearing about Incident 1, the Complainant’s mother called College Campus Security and
reported that the Complainant had been sexually assaulted by Student 1 (Incident 2). The
Campus Security Officer responding to the report (the Officer) notified the College Resident Life
Coordinator18 on duty (RLC 1) of the report. The Officer and RLC 1 reported to the dormitory
in which the Complainant and Student 1 both lived, and discussed the matter with a second
Resident Life Coordinator (RLC 2). RLC 1 twice attempted to call the Title IX Coordinator, but
was unable to reach him. RLC 1 then contacted the College’s Vice President of Enrollment
Management, who advised RLC 1 and RLC 2 that they should interview the Complainant.
RLC 1 prepared a report of the College Office of Residence Life’s response to Incident 2.19 She
stated that when the Complainant’s mother called Campus Security, she told the Officer that
Student 1 was “forcing himself” on the Complainant, and that the mother was unsure whether it
was sexual assault or rape. RLC 1’s report described her and RLC 2’s interview with the
Complainant. RLC 1 stated that the Complainant described her relationship with Student 1 in
detail, stating that Student 1 was controlling, manipulative and jealous; was mentally and
physically abusive; and wanted sex all the time. The RLCs asked the Complainant if Student 1
had ever continued to have intercourse with her after she asked him to stop. She did not give a
direct response. The RLCs also asked if Student 1 had raped her and she stated “I don’t know if
he has raped me, and I also adapt way too quick. I felt emotional tension, so I just gave out, and
then felt guilty again.” The RLCs also advised the Complainant to contact her RA, an RLC, or
Campus Security if she needed any sort of assistance.
The next day, the College moved the Complainant to another dormitory on campus, and banned
Student 1 from all dormitories except his own and one other dormitory on campus. The
Complainant advised OCR that she did not wish to move, because her friends all lived in her
original dormitory, but the College did not offer her any alternatives. The College’s Title IX
Coordinator at the time of Incident 2 advised OCR that he had asked the Complainant whether
she preferred to move or stay in the same dormitory, and she chose to move. The Coordinator

17

As discussed in greater detail below, the Complainant first brought this information to the College’s attention in
the written statement she filed with the College in conjunction with her later internal complaint, on November 21,
2013.
18
The RLC position in the College’s Office of Residence Life is a live-in administrator, responsible for supervising
an undergraduate residence hall and a staff of RAs. RLCs report to the Director of Residence Life, and in addition
to other responsibilities, are responsible for participating in a scheduled “on-duty” rotation (including emergency
situation response), and responding to incidents regarding student conduct and discipline. At the time of Incident 2,
RLCs at the College were recent alumni, some of whom may have been pursuing graduate studies at the College.
19
This was separate from the College Campus Security’s report concerning the same incident, dated October 28,
2013.

 Page 14 of 22 – Dr. Norman Smith, President
stated that he believed this was a better outcome than moving Student 1, because at least initially,
Student 1 would not know where the Complainant lived.
Two days after the move, the College’s Director of Multicultural and International Student
Services, who also served as the College’s Administrative Hearing Officer, met with the
Complainant regarding Incident 2. In an email following up on the in-person meeting, the
Administrative Hearing Officer instructed the Complainant that she should avoid visiting the
floor of her old dormitory on which Student 1 lived.
Five days after her first call, the Complainant’s mother contacted the Officer to follow up; she
expressed concern about the Complainant’s well-being. The Officer in turn contacted the RLCs
on duty (RLCs 3 and 4), who called the Complainant’s mother. The Complainant’s mother
stated her belief that the Complainant was in “a state of meltdown” in the aftermath of Incident
2, and was “truly scared of [Student 1].” She also stated to the RLCs that Incident 2 was rape in
the view of the Complainant. RLC 4 spoke with the Complainant after this call, and offered to
put her in contact with the County Crisis Center.
By letter dated November 6, 2013, the Administrative Hearing Officer initiated an administrative
hearing regarding Incident 2, to take place on November 12, 2013. 20 The Administrative
Hearing Officer copied the College’s Title IX Coordinator and the Vice President of Student
Affairs on the letter. At the hearing, Student 1 was charged with the following violations of the
Student Conduct Expectations (Code of Conduct): committing an act of physical abuse,
committing an act of intimidation or bullying, committing an act of harassment toward another
member of the College community, and endangering the mental or physical health of another
member of the College community. Though the Complainant’s mother had specifically alleged
that Student 1 sexually assaulted the Complainant, the College did not initiate a sexual assault
disciplinary proceeding at this time. The College explained that it interpreted the Complainant’s
statements to RLCs 1 and 2 in the aftermath of Incident 2, discussed above, as a description of a
relationship in which the Complainant felt controlled and bullied, and in which Student 1 wanted
sex more often and in a rougher way than the Complainant did, but also in which their past
20

As discussed later in this document, the College erroneously believed that the Complainant was not raising an
allegation of sexual assault/violence. It initiated an administrative hearing under its disciplinary system for students,
as set forth in its Code of Conduct, which in academic year 2013-2014 consisted of four “tiers” of possible
disciplinary response by the College. The tier that applied to a given offense was determined based on the nature
and severity of the offense, with Tier One applied to minor offenses and Tier Three applied to the most severe
offenses. Tier Four, the final level of the disciplinary system, was the level at which the College President heard
appeals from the lower three tiers. The Code of Conduct set forth the specific offenses and potential sanctions that
fall within each tier. It also described the entity within the College community that was responsible for adjudicating
complaints that arose under each tier. For complaints arising under Tier One, Campus Security or Residence Life
Administration issued a Conduct Citation. For complaints arising under Tier Two, there was a hearing before either
the Student Judicial Board or the Administrative Hearing Board (consisting of two trained hearing officers). For
complaints arising under Tier Three, there was a hearing before a Discipline Committee or Conduct Committee
(these two terms were used interchangeably to describe the same committee). The Dean of Student Life and Vice
President of Enrollment Management were responsible for determining whether a referral to the Discipline
Committee/Conduct Committee was appropriate. Finally, as discussed above, Tier Four consisted of appeals of
lower tier decisions to the College President. The Code of Conduct for academic year 2013-2014, when the
Complainant filed her complaint with the College, set forth, in relevant part that “harassment violations” were Tier
Two offenses, whereas “sexual assault” was a Tier Three offense. Thus, the College erroneously determined that
the Complainant had alleged a “harassment violation” rather than a sexual assault.

 Page 15 of 22 – Dr. Norman Smith, President
sexual activities had not been without her consent. At the hearing, however, the Complainant’s
description of Incident 2 led the College to believe that the Complainant wished to pursue a
complaint of sexual assault. Since a complaint involving sexual assault involved a separate
procedure from the administrative hearing, the College required the Complainant to submit a
written statement to initiate the Title IX grievance process under the Policy to address the
Complainant’s allegation of a sexual assault.
On November 15, 2013, the College issued a written notice of its determination regarding the
administrative hearing on November 12, 2013. The College found Student 1 to be responsible
for “committing an act of intimidation or bullying” and “endangering the mental or physical
health of another member of the College community,” and it imposed various measures to
address the situation.
On November 21, 2013, the Complainant submitted a written “incident report” that the College
considered the Complainant’s initiation of its Title IX grievance procedure regarding an alleged
sexual assault. 21 According to the incident report, the Complainant stated that she and Student 1
first met prior to the start of academic year 2013-2014, during the College’s summer registration
for incoming first-year students. Thereafter, they communicated frequently with one another,
and Student 1 visited the Complainant at her parents’ house. Complainant stated that Student 1
engaged in unwelcome, physically aggressive foreplay, and was persistent in persuading her to
engage in sexual intercourse; no one apprised the College of this incident at the time the
Complainant and Student 1 arrived on the College’s campus. In the incident report, the
Complainant also shared additional details regarding the events surrounding Incident 2. She
stated that on October 25, 2013, Student 1 had approached her seeking to reconcile, and she
agreed to meet with him after his last class that day. She stated that when they met, he “pulled
[her] back into his room, took [her] books from [her], and threw [her] on the bed. He started to
become forceful, persuading [her] to take off her clothes, and out of fear, [she] agreed to have
sex with him.” The Complainant said that she and Student 1 got back together after this
encounter. Subsequently, after another sexual encounter that upset her, the two broke up for
good. In subsequent conversations with her friends and her mother, the Complainant came to
believe that the incidents “felt like rape.” She informed her mother of this belief, and her mother
contacted campus security to report her concerns.
The College did not begin an investigation into the Complainant’s incident report of November
21, 2013, until February 6, 2014. The College advised OCR that it did not immediately
commence its investigation for a number of reasons, primarily based on the College’s academic
calendar. First, the College’s Thanksgiving break was imminent. Then came the final day of
classes and final exams were administered. Shortly thereafter, the College began its winter break
and did not reconvene for its winter 2014 semester until January 6, 2014.22 In addition, the
College stated that Student 1 suffered a medical episode in January 2014, which led to his
hospitalization for at least a week. Thus, the College asserted that it delayed the investigation
because it had to balance its concerns for both the Complainant and Student 1. Nevertheless, the
21

OCR was unable to determine, based on documentation provided by the College, whether the College confirmed
with the Complainant at the time she submitted the incident report that she understood how to report if any
retaliation resulted from her complaint.
22
The College operates on a trimester schedule.

 Page 16 of 22 – Dr. Norman Smith, President
College stated that it had previously taken interim measures related to the Complainant’s earlier
complaint that remained in place.
OCR reviewed the College’s case file, which included transcripts of the College’s investigatory
interviews, dated February 6, 7, and 12, 2014; a draft investigative report, dated February 14,
2014; and a final investigative report submitted to the Title IX Coordinator on March 3, 2014. In
its investigation, the College interviewed the Complainant, Student 1, and two additional student
witnesses (Students 2 and 3).
In her interview with the investigative officers on February 6, 2014, the Complainant detailed her
relationship history with Student 1, dating back to the summer of 2013. She described his
allegedly controlling and manipulative behavior, verbal abuse, and physically abusive conduct
during their sexual encounters. In describing her second-to-last encounter with Student 1, the
Complainant stated, “[Student 1] said that he wanted to talk and grabbed me from the hallway
and pushed me onto the bed and raped me.”
Students 2 and 3 corroborated the Complainant’s prior statements to the RLCs following
Incident 2, i.e., that she wanted abstinence and Student 1 did not want a sexless relationship.
Student 4, who had been Student 1’s roommate during the fall 2013 semester, stated that the
Complainant had told him at the time that Student 1 had verbally and physically abused her;
however, he had only witnessed one instance of verbal abuse.
According to the investigative officers, Student 1 stated that his relationship with the
Complainant was “unhealthy” because he and the Complainant “were always fighting and
yelling at each other,” but he denied any physical contact with the Complainant during such
fights. Student 1 stated that he hit the Complainant during sex but asserted that she enjoyed it.
Student 1 stated that the Complainant never told him “no” during any of their sexual encounters,
and asserted that none of their sexual encounters could have been construed as “sexual
misconduct.” The investigative officers did not ask Student 1 about any specific sexual
encounters or about the Complainant’s stated desire for “abstinence.”
On February 12, 2014, the investigative officers conducted a follow-up interview with the
Complainant, during which they asked the Complainant if she ever said “no” to Student 1 at any
time during their sexual contact. She stated that she would say “we shouldn’t do it” and there
were times she said she did not want to, but she did not believe she ever said the word “no.”
The College’s final investigative report concluded that Student 1 had sexually harassed the
Complainant and committed sexual misconduct; however, the final investigative report did not
conclude that Student 1 had engaged in sexual intercourse without the Complainant’s consent.
As a sanction, the final investigative report recommended several measures, including that
Student 1 have no contact with the Complainant for the remainder of academic year 2013-2014
and also through academic year 2014-2015, and that the Complainant be allowed to choose her
housing and register for courses before Student 1 until both students were no longer enrolled at
the College.

 Page 17 of 22 – Dr. Norman Smith, President
By letters dated March 7, 2014, the College’s Title IX Coordinator informed both the
Complainant and Student 1 of the College’s findings.23 The letters stated that Student 1 was
found responsible for “displaying inappropriate behavior and misconduct;” the letter did not state
that Student 1 was found to have sexually harassed the Complainant. The letters outlined a
number of sanctions, including: (1) Student 1 was banned from living in or visiting any residence
hall in which the Complainant resides; (2) Student 1 could not register for or attend the same
section of a course for which the Complainant registered; (3) Student 1 was assigned “housing
probation”24 through the conclusion of academic year 2015-2016, and advised that any incidents
of “misconduct” occurring in or pertaining to residence halls would result in a review of his
status as a student; and, (4) Student 1 was issued a “formal warning” that any other incidents of
harassment while he was a student might result in his dismissal from the College. Neither letter
advised the Complainant or Student 1 of appeal rights; the Title IX Coordinator asserted that he
orally notified both parties of their appeal rights. The Complainant asserted that the Title IX
Coordinator advised her that Student 1 could appeal the determination, but not that she could
appeal. Neither party filed an appeal.
Based on the above, OCR determined that the College did not conduct a prompt investigation
into the Complainant’s report of a sexual assault. OCR did not make a determination about
interim measures given the conflicting evidence offered by the College and the Complainant
about her desire to move dormitories rather than requiring the respondent to move; additional
information was required to resolve the conflict. OCR determined that the College conducted an
equitable investigation into the Complainant’s report of sexual assault in that it provided the
parties an equal opportunity to present relevant witnesses and other evidence during its
investigation. The College appropriately applied the preponderance of evidence standard. While
the College did not make any specific findings as to hostile environment, the evidence does not
indicate that the Complainant was subjected to subsequent encounters with Student 1 on the
College campus, or any other source of related harassment, as a result of the College’s failure to
conduct a prompt investigation after the Complainant reported the incident. Accordingly, the
evidence does not support that the Complainant continued to be subjected to a sexually hostile
environment due to the College’s failure to conduct a prompt investigation.

23

In the Title IX Coordinator’s letter to the Complainant, he advised her to contact Campus Security if any act of
retaliation occurred.
24
The College’s Student Handbook for academic year 2013-2014 defined “housing probation” as follows: “A
warning because of the engagement of certain behaviors, a resident student’s housing may be revoked if another
violation occurs. The consequences of violating the probation may be dismissal from the College for any student
whose family does not live within commuting distance (50 miles) of the College. For a student within commuting
distance, it means being banned from all residence halls and other related and appropriate sanctions. Housing
Probation may be applied to a student who is involved in one serious incident, such as violent behavior, harassment,
sexual harassment, compromise of the security of the living community, bullying or intimidation, etc. that does not
result in a student‘s dismissal. It can also be applied to a student involved in a series of minor policy violations who
has gone through one or more tiers of the discipline system. Housing Probation is usually administered by the
Assistant Dean of Student Life and may be appealed to the Vice President of Enrollment Management. If the
probation is administered by the Judicial Board, the appeal goes to the Vice President of Enrollment Management. If
it is administered by the Discipline Committee, the President would receive the appeal. The length of the Housing
Probation will be determined by the individual or board creating the sanction and can range from one term to the rest
of one‘s career at the College.”

 Page 18 of 22 – Dr. Norman Smith, President
Review of 16 Investigative Case Files
In addition to the College’s handling of the Complainant’s case, OCR reviewed how the College
handled other sexual harassment complaints, including complaints of assault and violence, filed
during academic years 2012-2013, 2013-2014, and 2014-2015, totaling 16 files.25 OCR
concluded that the College weighed the evidence in the 16 files consistent with a preponderance
of the evidence standard. Based upon its review of these 16 files alone, however, OCR identified
violations of Title IX and other concerns, which are discussed below.26
OCR determined that information the College provided demonstrated that the College sometimes
failed to provide prompt resolutions, and other times failed to provide equitable resolutions to
these complaints, in violation of the regulation implementing Title IX at 34 C.F.R. § 106.8(b).
OCR determined that when the College conducted investigations, the College equitably
interviewed witnesses and reviewed evidence. The College also equitably provided notice of the
outcome, except in two files: one in which the College notified the respondent that it would
modify the restrictions imposed on him but did not communicate that modification to the
complainant27, and another in which the College provided no evidence of notice to the
complainant while it provided written notice of the outcome of the investigation to the
respondent.28 In a third file, the College did not, in the notice of the outcome, identify what the
College concluded based on the investigation, or specify the misconduct for which the
respondent was responsible.29 OCR identified four files in which the College did not promptly
initiate and/or conduct the investigation.30 Case Number 3 is illustrative of the College’s failure
to provide a prompt resolution to a sexual harassment complaint and sufficient information in the
notice of outcome.
Case Number 3
A student (the complainant) complained to a RLC that she had been sexually
assaulted by another student. The complainant claimed that she was drinking
with the respondent, and ended up in the respondent’s room, where he forced her
to have sex. The College did not begin interviews until 44 days after the filing of
the complaint. Over one month later, the Vice President of Enrollment
Management sent a letter to the respondent, and an email to the complainant,
informing them of the completion of the investigation. The letter and email did
not explicitly identify what the College concluded based on the investigation, or
specify the misconduct for which the respondent was found responsible.

25

OCR requested all documentation relevant to each complaint, as well as a detailed description of the College’s
complaint investigation procedures. OCR’s findings are based on the materials produced by the College in response
to OCR’s data requests.
26
The College twice provided case files to OCR, once on June 12, 2014, and once on June 5, 2015. The College
used a sequence of numbered tabs to identify the files in both submissions, and the files were not submitted in
chronological order. OCR put the files in chronological order and applied case numbers from 1 to 16.
27
This occurred in Case Number 2.
28
This occurred in Case Number 16.
29
This occurred in Case Number 3.
30
This occurred in Case Numbers 3, 4, 10 and 13.

 Page 19 of 22 – Dr. Norman Smith, President
OCR’s review identified 10 files with no record that the College assessed the need for or
provided interim measures, or with records that demonstrated limited and sometimes improper
interim measures.31 A recipient must provide interim measures where appropriate to comply
with the regulation at 34 C.F.R. § 106.31 and ensure individuals can fully access a recipient’s
programs while an investigation is pending. Case Number 10 is an example of the College
providing limited interim measures.
Case Number 10
A student (the complainant) reported to a RA that the respondent, who lived in
her dormitory, entered her dormitory room when she was wearing only a towel.
The respondent tried to kiss her and remove her towel. She pushed him away and
told him to leave her room. The RA reported the incident to the RLC. In the
Residence Life Incident Report, the RLC stated that the complainant should not
have any contact with the respondent, and that, during winter break, the
complainant would stay in a different dormitory, because it was unclear whether
the respondent would be living in their dormitory over winter break. There was
no documentation indicating whether the College offered the complainant
counseling or other interim measures.
Further, OCR identified five files in which the College did not complete an investigation after
the complainants stated that they did not wish to proceed with the investigation.32 The Title IX
regulatory requirement that “no student” be denied the benefits of a recipient’s education
program or subjected to discrimination on the basis of sex, at 34 C.F.R. § 106.31(a), obligates the
College to take steps to ensure student safety when it has notice of alleged discrimination. OCR
has provided guidance regarding the issue of what a recipient should do when a complainant
indicates that she/he does not want to proceed with a complaint investigation.33 According to
that guidance, when a complainant informs a college that he/she does not want to proceed with
an investigation, the college is supposed to conduct an independent assessment of whether it can
honor the complainant’s request not to proceed while “still providing a safe and nondiscriminatory environment for all students.” The College did not provide information to
support that in making the decisions to not proceed with an investigation, the College conducted
an independent assessment of whether it could honor the complainants’ requests not to proceed
while “still providing a safe and non-discriminatory environment for all students.” OCR found
that in two files reviewed, such an assessment may have demonstrated to the College that it
needed to proceed with an investigation despite the complainant’s request not to proceed.34 Case
Number 9 illustrates this failure.

31

This is reflected in Case Numbers 1, 3, 4, 6, 8, 9, 10, 12, 14, and 15.
This occurred in Case Numbers 5, 7, 9, 12 and 13.
33
For further information, see 2001 Guidance, Section VII.C, page 18. See also Title IX Q&A, Question E-1.
34
This occurred in Case Number 9 (alleged rape by three athletes) and Case Number 13 (alleged physical
harassment by a Residence Life staff member).
32

 Page 20 of 22 – Dr. Norman Smith, President
Case Number 9
A student (the complainant) reported to a RA that she was raped by three
members of a College athletics team. She claimed that respondents forced her to
drink alcohol, that one had sex with her, and that the two others tried to force oral
sex. The RA notified the RLC about the incident and took the complainant and
two of the complainant’s friends to the hospital. The Dean of Students and RLC
met with the complainant.35 During the conversation, the complainant informed
the College that she did not want to proceed under the College’s Title IX
grievance procedures; instead, she wanted to pursue the case only through a
criminal prosecution. The Dean of Students sent a letter to the complainant
confirming that the complainant did not want to participate in the College’s
investigative process and instead would pursue a criminal prosecution. The letter
also stated the complainant could contact him if she decided to pursue this issue
so that the College could support her. The documentation the College provided
did not indicate if the College considered whether it should continue its
investigation of the case or if it informed the respondents whether or not it
decided to continue the investigation. The Dean of Students advised OCR that all
three of the respondents were suspended from their athletics team while the
complainant’s allegation was still pending with the College; however, once the
complainant indicated that she did not wish to proceed internally, the suspensions
were lifted.
With respect to nine files, the information provided by the College was not sufficient for OCR to
make an independent determination about whether the College properly addressed the effects of
a possible hostile environment.36
Summary of Resolution Agreement
The College delivered an executed copy of the Resolution Agreement to OCR on December 14,
2016. The Resolution Agreement addresses the compliance issues and other concerns identified
in OCR’s investigation, and when fully implemented, will resolve the College’s noncompliance
with Title IX. In accordance with the Resolution Agreement, the College agrees to:





35

Add the office address of the College’s Title IX Coordinator to all relevant documents
containing information about how to contact the Title IX Coordinator.
Revise its notice of non-discrimination to add that it prohibits discrimination on the basis
of “sex.” The College will also revise its notice of non-discrimination to state that
inquiries concerning the application of Title IX and its implementing regulation may be
referred to the designated Title IX coordinator(s) or to OCR’s Assistant Secretary; and
take steps to ensure that the notice is appropriately published and distributed.
Revise its “Policy Against Gender Discrimination and Sexual and Other Misconduct” to
delete or otherwise clarify any language that suggests the College would need “authority

The documentation the College provided indicated that the College tried to schedule the meeting with the
complainant earlier, but the complainant was sick and was unable to meet.
36
This occurred in Case Numbers 1, 3, 4, 8, 9, 10, 12, 13, and 14.

 Page 21 of 22 – Dr. Norman Smith, President















over the potential violator,” in order to investigate a complaint of sexual harassment,
including assault/violence.
Provide training to all College staff who are responsible employees for recognizing and
reporting incidents of sexual harassment, and also provide training to its Title IX
coordinator(s) and designees and any other College employees directly involved in
receiving, processing, investigating, adjudicating and/or resolving complaints of sexual
harassment, including sexual violence.
Establish a committee of students (with representation from various student groups,
including women’s groups, student athletes, Residential Life students, and others), the
College’s Title IX coordinator(s), and others, as appropriate, to identify and recommend
strategies to ensure that students understand their rights under Title IX and the College’s
procedures, including how to report possible violations of Title IX.
Offer information sessions to students so that they are aware of the College’s prohibition
against sex discrimination (including sexual harassment and sexual assault/violence);
how to recognize such sex discrimination and sexual harassment when it occurs; the
College’s grievance procedures for Title IX complaints, including how and to whom to
report any incidents of sex discrimination; a general overview of Title IX and the rights it
confers on students; the resources available to students who have experienced sexual
harassment or sexual assault/violence, including interim measures available during the
course of an investigation; safe bystander intervention strategies; and, the existence of
OCR and its authority to enforce Title IX.
Ensure that existing informational materials contain information on: how and where to
file a complaint of sexual harassment or sexual assault/violence with the College; the
name and contact information for the College’s Title IX Coordinator, and a description of
the responsibilities of the Title IX Coordinator; information on how to obtain counseling
and academic assistance in the event of sexual harassment and sexual assault; and
information on what interim measures can be taken to protect a complainant and how to
request interim measures.
Continue to conduct bi-annual climate surveys for students that contain questions about
the student’s knowledge of sex discrimination (including sexual harassment and sexual
assault/violence), any experiences with sex discrimination while attending the College,
and the student’s awareness of the College’s Title IX policies and procedures.
Send a letter to the City of Elmira Police Department and any other external local law
enforcement agencies with jurisdiction over the College and its students requesting a
Memorandum of Understanding (MOU) to improve communication and coordination and
to address the protocols and procedures for referring allegations of sexual violence,
sharing information, and conducting contemporaneous investigations.
With respect to Complainant, the College will revise and re-issue the determination letter
sent to Complainant to clarify that the misconduct that respondent was found responsible
for was sexual harassment. Further, the College will investigate whether Complainant
asked to move from her dormitory or whether she was required to move. Finally, the
College will assess what effects, if any, the Complainant experienced due to the length of
the investigation and adjudication process, as well as from moving from her dormitory, if
appropriate, depending on the outcome of the College’s investigation. The College must
redress the effects, if any, taking into account the interim relief already provided to the
Complainant.

 Page 22 of 22 – Dr. Norman Smith, President
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Take actions to address violations and concerns OCR identified with respect to the 16
cases OCR reviewed from academic years 2012-2013, 2013-2014 and 2014-2015.
Reexamine all reports of sexual harassment and sexual assault/violence filed with the
College during academic year 2015-2016 and the Fall 2016 semester to determine
whether each complaint was handled consistent with Title IX; and take appropriate action
to address any problems identified, including providing remedies that may still be
available for the complainants in these cases, such as counseling or academic
adjustments.
Provide complaint files and information about the College’s processing of sexual
harassment complaints for the academic years 2016-2017, 2017-2018 and 2018-2019.

Conclusion
This letter should not be interpreted to address the College’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 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.
The Complainant may have the right to file a private suit in federal court whether or not OCR
finds a violation.
Please be advised that the College 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 should occur, an individual may file a separate complaint alleging such
harassment or intimidation.
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, it 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.
OCR thanks the College for its cooperation with OCR during the course of the investigation. If
you have any questions about OCR’s determination, please contact Coleen Chin, Senior
Attorney, at (646) 428-3809 or coleen.chin@ed.gov; Eric Bueide, Senior Attorney, at (646) 4283851 or eric.bueide@ed.gov; or Aditi Shah, Compliance Team Attorney, at (646) 428-3897 or
aditi.shah@ed.gov.
Sincerely,
/s/
Timothy C.J. Blanchard
cc: Laura Harshbarger, Esq.