5

Richardson, Fem

From:
Sent
To:

Subject:

Carey, Robert M. <Robert.Carey@ed.gov>
Tuesday, November 25, 2014 1:26 PM
Richardson, Peggy

FW: OCR Electronic Complaint Submission

From: OCR 
Sent: Tuesday, November 25, 2014 12:25:52 PM

To: Carey, Robert M.

Subject: FW: OCR Electronic Complaint Submission

Auto forwarded by a Rule

 

From: ocr complaint?edoovaMTPzOCR 
Sent: Tuesday, November 25, 2014 12:24:51 PM

{bWtCi

OCR Philadelphia

Subject: OCR Electronic Complaint Submission
Auto forwarded by a Rule

PLEASE DO NOT REPLY TO THIS E-MAIL. THIS E-MAIL ADDRESS IS USED BY DEPARTMENT OF
EDUCATION AUTOMATED SYSTEMS AND IS NOT MONITORED.

SUBMISSION CONFIRMATION

Your

complaint with the Office for Civil Rights has been automatically

forwarded to the following office for review:

Office for Civil Rights/ED
Philadelphia Office

Phone: 21 5?656-8541
TDD: 

The Wanamaker Building

100 Penn Square East, Suite 515
Philadelphia, PA, 19102-3323

Fax: 215-656-8605
Email: 

So that we can best assist you, we call your attention to the following:

1.

If you need to communicate with OCR regarding your complaint before you are contacted directly,
please do not reply to this message, which would result in your reply going to a send-only server
address. Instead, please direct your correspondence to the above office at
OCR.Philadelphia@ed.gov
If you need to modify or supplement your complaint, please do not use the complaint form to
submit another complaint with the new information. Instead, you may simply send an email to the
office that has your complaint. Filing duplicative complaints may impede our ability to review your
concerns in a timely manner. (If you have a separate complaint invoiving other matters, you may
of course use this form to submit it.)
Remember that before OCR can process your complaint, we must receive a signed and dated
consent form. If we have not received your signed consent form within 20 caiendar days of the

1

 i
date of this email, we will close your complaint. A copy of the Office for Civil Rights Consent Form
is available for your convenience at OCR Complaint Consent Form. Please sign and date the
appropriate response on the consent form and mail it to the OCR Enforcement Office at the address
above. If you do not have access to a printer, please email or call the OCR Enforcement Office
identified above to request a blank consent form.
4. It is recommended that you print a copy of this message and retain it for your records.

If you have not already read the following documents, they can be downloadable from the links below:

- Information About OCR's Complaint Processino Procedures
Office for Civil Rights Notice About Investioatory Uses of Personal Information

1H Institution Name: Frostburg State University

OCRXOCD: Administration - Fort-uplath Form Details Page 1 of 2


it
3/33


 Office for Civil Rights

Oniine Complaint Database Administration

Discrimination Complaint Form Details

1. Enter information about yourself.
lilrst Name: {bx?MS)

Last Name:

 

?ddrESs;

City:

State:

Zip Code:

Best Time to Call You:
Primary Phone Number:
AitErnatwe Phone Number:

Your mail AfirJrESSi

 

 

 

2. Who else can we call if we cannot reach you??I
Ctmteatil's Name:
Daytime Phone Number:
Rosationship to you:
3. Who was diStzriminated against?
Myself
If someme other than yourself please include:
[muted Parson's Name:
Daytnne Phone Number:
Evening Phone- Number:

to You
{629. $015 or daughter}

INJUFECJ Persm?s Address:

City:
State:
Zip Code:
4. what institution discriminated?
lnsulnimn Name lr'usthnic_  Estatu 
Braddock lltl.
i- I'ost?nor 
Stato- Mi.)
?Code: 21532
School or lanersity,r Poi-sun. Departian

Involved.-

5. Have you tried to resolve the complaint through the institution's grievance procass, due
process hearing, or with another agency?

ii'i

Agency Name;

Date FliEil.?

nz-rent status of the complaint:

5. Desoribe the disorimination

On what base worn you discrimn'lated anamst?

51014;

12f2f20 4

Deli-0CD; Administration Form Details Page 2 of2

DPSUIDUDR at each discriminamry action:

i was mt?rced Into a saxual act by While he dunhgm
1 reported fhl' InCIdent on [Hp school man; 0111 a
[mm-I about Hm ohm. 1h war?: a: mml, ?mum'an
{sake-d for Inmrmatnm 0n mu not ask r'm- other earmarer may haw hr?:

tihrmt [helr m1: nsmults by ID 5 i" I emr! ruftar'rtrri any mm to a team ul? 
{rather than the schqu listen). I was nave-r (untamed again about any mtemal :rweshgahnh The
SCHODI was cormduutmg.

Do you have that yum: think wiil help us understand your compiaint?
NU
T, When did the last act of discrimination occur?

Enter the date: 

We film a waiver of the ISO?day filmy tll?T'l'C? IiITul' for diSCrin?lrhatmh that ocrurred mar-:4
tf-ah days before the ruling of the complaint?

Nu
Reason for not filing complaint before 130 days.
Ramon:

B. What would you like the institution to do as a resuit of your Complaint?

Bark tc VIEW P?ge

- .. - - lull-w 

12f2f2014

is 2: 
Of?ce for Civil Rights Consent Form Page 1 of 2



L. S. Department of b. I - GO

Advanced Search

To print: t'licL here or Select File and then Print from your browser's menu

United States Department of Education

Office for Civil Rights

CONSENT FORM - FOR REVEALING NAME AND PERSONAL
INFORMATION TO OTHERS

{Til 

 

(utter (mine) pt for signature line)

Your Name:

 

 

 

 

Name of School or Other Institution That You Have Filed This Complaint Against:
i 
l?l balm-This form asks whether the Of?ce for Civil Rights (OCR) may share your name and other personal information when
OCR decides that doing so will assist in investigating and resolving your complaint.

 

- For example, to decide whether a school discriminated against a person, OCR often needs to reveal that person?s
name and other personal information to employees at that school to verify facts or get additional information. When
OCR does that, OCR informs the employees that all forms ofretaliation against that person and other individuals
associated with the person are prohibited. OCR may also reveal the person?s name and personal information during
interviews with witnesses and consultations with experts.

- If OCR is not allowed to reveal your name or personal information as described above. OCR may decide to close
your complaint determines it is necessary to disclose your name or personal information in order to resolve
whether the school discriminated against you.

NOTE: If you file a complaint with OCR, OCR can release certain information about your complaint to the press or
general public, including the name ofthe school or institution: the date your complaint was filed; the type of
disorimination included in your complaint; the date your complaint was resolved, dismissed or closed; the basic
reasons for decision; or other related information. Any information OCR releases to the press or general
public will not include your name or the name ofthe person on whose behalfyou ?led the complaint.

NOTE: OCR requires you to respond to its requests for information. Failure to cooperate with investigation
and resolution activities could result in the ciosure ofyour complaint.

Please sign section A or section (but not both) and return to OCR:

- lfyou filed the complaint on behalf of yourself, you should sign this form.
- If you filed the complaint on behalf ofanother specific person, that other person should sign this form.

EXCEPTION: lfthe complaint was ?led on behalf ofa specific person who is younger than l3 years old or a
legally incompetent adult this form must be signed by the parent or legal guardian of that person.

Ifyou ?led the complaint on behalf ofa class of people, rather than any Speci?c person. you should sign the form.

 

Of?ce for Civil Rights Consent Form Page 2 of2

 

(WW0)

 

to reveal my identity (and that of my minor ehiidtward on whose behalf the complaint is
investigation and enforce ent activities.

t1/l?ii7/i

Date I 

 

 

B. I do not give OCR my consent to reveal my identity {and that of my minor childfward on whose behalf the
complaint is filed) to others. i understand that OCR may have to close my complaint.

 

a
Signature - Date

1 declare under penalty ofperjury that it is true and correct that am the person named above' and, ifthe complaint is ?led
on behalfofa minor child/ward, that I am that person?s parent or legal guardian. This declaration only applies to the
identity ofthe persons and does not extend to any ofthe claims ?led in the complaint.

Updated Apri! 201' 4



1 u??w . .

UNIT  STATES DEPARTMENT OF REGION 

OFFICE FOR CIVIL RIGHTS 

THE WANAMAKER BUILDING, SUITE 515 MARYLAND
Ion PENN SQUARE 
PHILADELPHIA, PA 

 

December 2, 2014

IN RESPONSE, PLEASE REFER TO: 03152032

 



 

 

 

Dear (WW3) 

Sincerely,

Peggy Richardson
Equal Opportunity Assistant

The Department affducarr'en?s mission is to promote student achiwement and preparation for gin-bu! competitiveness
by fostering educatmna! exce?ence and ensuring aqua! access.

 

313-2!? Award Yur Dlrn'l Lu? Vultu- h! 
may {4m 2m?. ,m'mm

u-Mini In-m (null! .kw-J..n . 5  m. 

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mm mmrm'm 51?411: 1 ?Lu-mu 1 In I: Isl?.133 rho?I

 

 l} i)

Niedzalkoski, Am!

From: Niedzalkoski, Amy

Sent: Friday, December 12, 2014 4:44 PM



Cc: man-Beer, Beth 

Subject: RE: US. Department of Education, Office for Civil Rights Frostburg State University
(03152032) .

Thank you for getting back to me so quickly.
Have a nice weekend.
Amy

 

From: Inglis); {bitilcl I

Sent: t-riday, December 12, 2014 4:43 PM

To: Niedzalkoski, Amy 

Subject: Re: U.S. Department of Education, Of?ce for Civil Rights - Frostburg State University (03152032)

I give full consent for the US. Department of Education, Of?ce for Civil Rights to speak with

Itblt?l: in regards to my case.

Thank you.

 

103145); (blii'tCl I

On Fri, Dec 12, 2014 at 4:38 PM, Niedzalkoski, Amy wrote:

Thank you for speaking with me today. I understand that you are going to print and sign the consent form at work on
Monday and you will mail it to our office on Monday as well. In addition, thank you for letting me know that you give
your consent for us to speak withlm?ys); (mine) I about your case. As we discussed,
please respond back to this email and confirm that it is fine for us to do so.

Please do not hesitate to contact me or Beth with any questions.

Sincerely,

Amy

 

From: Gellman-Beer, Beth
Sent: Wednesday, December 03, 2014 2:45 PM

 i
To: Niedzalkoski, Amy.

Subject: FW: U.S. Department of Education, Of?ce for Civil Rights Frostburg State University
(03152032)
Importance: High

 

From: Gellman-Beer, Beth

Sent: Wednesday, December 03, 2014 2:45 PM

To: 031(5); (nitric)

Subje RE: U.S. Department of Education, Of?ce for Civil Rights - Frostburg State University
(03152032)

Importance: High

Ms. Hanning,
Amy Niedzalkoski, of my staff, received an inquiry from libltii}: Iasking for the location of the consent

form. May we speak directly with Irena};  as your rEpresentative? In the interim, the consent form can be
located here: 

Please complete it and return to our office. You may PDF the signed consent form via email office at 215?656-8605.

Thank you,

Beth Gellman?Beer

 

From: Gellman-Beer, Beth

Sent: Wednesday, December 03, 2014 1:10 PM

To: 

Subject: U.S. Department of Education, Of?ce for Civil Rights - Frostburg State University
(03152032)

(0)003}

 i 

The US. Department of Education iDepartment), Office for Civil Rights (OCH), has received the complaint you
filed on November 25, 2014, against Frostburg State University {the University) alleging sex
discrimination. You alleged that the College discriminated against you on the basis of sex when it failed to
and equitably respond to your May 2014 complaint that you were sexually assaulted.

OCR has not received your signed consent form which is due on or before December 15,2014. In accordance
with case processing procedures, in order to move forward, OCR needs to receive the signed consent
form within 20 calendar days from the date you tiled your complaint (November 25, 2014) or may close
your compiaint. it you need assistance, please respond via email or you may contact me at the contact
information listed below.

Sincerely,

Beth Bellman-Beer, Esq.
Supervisory Attorney

U.S. Department of Education
Office for Civil Rights

The Wanamaker Building

100 Penn Square East, Suite 515

Philadelphia, PA 19107

(215} 655-6935 Direct Dial
(2151 656?8605 - Fax



?i

     
   
  

    


UNITED STATES DEPARTMENT OF EDUCATION giggly;
. a; as} orr-ics FOR triviL iticH'i's kahi't'U-CK'E
mg, {gr-tr; MARYLAND
HEEL. 'g 
  315 
at   a" mo PENN nas'r
?Aims! islet?3323

   

December 19, 2014
IN RESPONSE, PLEASE REFER TO: 03132328

Dr. Jonathan Gibraltar
President

rostburg State University
it)? Midlothian Road
Frostburg, MD 21532

Dear Dr, Gibraltar:

This is in reference to the above-referenced complaint filed with the US. Department of
Education (Department), Of?ce for Civil Rihts (OCR), against the University. This is to notify
you that another Complainant, (Complainant 2), has ?led a complaint alleging
that the University discriminate against her on the basis of sex by failing to appropriately
respond to her complaint of sexual sexual assault in May 2014.

OCR will be investigating and resolving this allegation under the above-referenced docket (03-
13-2328) concerning the University 5 alleged failure to and equitably respond to
complaints, reports andior inordents of sexual violence of which it had notice, which subjected
students to a sexually hostile environment. By email dated November 25. 2014, OCR notified
Counsel that we need additional information to complete our investigation. Speci?cally, we

during the 2013-2014 and 2014-1015 school years. For each complaint identified, please

a. The name. or unique identifier. and sex of the student who made the report or
complaint.

b. The name or unique identifier, sex and position leg, student, faculty, staff) of the
individual against whom the complaint was ?led.

c. The date each complaint was filed, the date the investigation was started. the
date the investigation was completed. the date any hearing was convened, date
the ?nal decision was issued, and a description and date of any other step in the
process.

'i'lir nil fitnml?ioii ?5 session is to moi-Hort: shrill-Ht mid global 
by {trash-ring educatioth t'xt?cllciiru mnl' virtual int-use.

mvwedgnv

Page 2 - Dr. Jonathan Gibraltar

we

The type of report or complaint ?led formal or informal}.
The allegationts) made in the report or complaint including whether it alleged
sexual harassment. sexual assault or sexual violence. and whether the

report or complaint was ?led (campus police. student services, academic dean,
counselor. etc).

Indicate whether the complaint was investigated. if yes. provide the name and
title of the lniuersity nffinial nr staff mamher who investigated the.- If
the complaint was not investigated, please indicate why an investigation was not
conducted.

if the. complaint was investigated. provide a copy of all investigative reports.
?ndings or other documents that describe the outcome and resolution. including
a description of all the remedies and sanctions resulting from the decision.
Indicate whether a hearing was conducted in connection with the complaint. If a
hearing was conducted. describe the process used and the names and titles of
all persons who participated in the hearing and decision making; provide a copy
of the hearing decision, report or other documents describing the hearing
decision. including all documents describing the remedies and sanctions that
resulted from the decision.

indicate whether an appeal was filed and by whom. If yes. provide a copy of the
appeal procedure. identify the staff person responsible for deciding the appeal.
and provide a copy of the appeal decision or outcome.

OCR is requesting that you forward the requested information to us within ?fteen (15) calendar

days.

Thank you for your cooperation in this matter.

If you have any questions. please contact me at

215?656-6935 or by email at 

Sincerely.



Beth Gellman-Beer
Team Leader
Philadelphia Of?ce



UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS

1.;5

THE WANAMAKER BUILDING, SUITE 515
[ill] PENN SQUARE EAST
PHILADELPHIA, PA 

 

A603 an

 

December XX, 2014

EJHJU

IN RESPONSE, PLEASE REFER TO: 03132328

 

Dr. Jonathan Gibraltar
President

Frostburg State University
10? Midlothian Road
Frostburg, MD 21532



 

 

but?? lei  2,

Dear Dr. Gibralter:

1?60

'71

 

 

. 

 

'wi 

i? respond to her complaint of sexual sexual assault in May 2014.

 

Toan
1 pl? (Ht .1 

available on our website at 

 



i {Iii-wt I'I?nlr'

., students to a sexually hostile environment. By email dated November 25,
Counsel that we need additional information to complete our investigation.

 

 

provide the information below with the dates for each step of the process:

 

complaint.



individual against whom the complaint was filed.

 

 

HLVG

process.

 

 

g- sex in any education program or activity operated by a recipient of Federal ?nancial
As a recipient of Federal financial assistance from the Department, the University is subject to
(a Title ix and its implementing regulation. Additional information about the laws OCR enforces is

REGION 
DELAWARE
KENTUCKY
MARYLAND

WEST VIRGINIA

This is in reference to the above-referenced complaint filed with the US. Department of
Education (Department), Office for Civil Ri (OCR), against the University. This is to notify
you that another Complainant, '(bii?i; (bittici  (Complainant 2), has filed a complaint alleging

that the University discriminatet agains er on the basis of sex by failing to appropriately

assistance.

OCR will be investigating and resolving this allegation under the above-referenced docket (03-
13?2328) concerning the University?s alleged failure to and equitably respond to
- r? complaints, reports andlor incidents of sexual violence of which it had notice, which subjected

2014, OCR noti?ed

or sexual violence that have been brought to the University's attention (formally or informally}

during the 2013-2014 and 2014-1015 school years. For each complaint identified, please

a. The name, or unique identifier, and sex of the student who made the report or

b. The name or unique identifier, sex and position student. faculty, staff) of the
c. The date each complaint was filed, the date the investigation was started, the

date the investigation was completed, the date any hearing was convened, date
the final decision was issued, and a description and date of any other step in the

Tire ofEifiu'ntion?s is to pi'oiirotu student nrfir'evciirciit and preparation for gtolmf 

cifirrirtioiini ctt?sllriin?t- and ensuring squirt traces.



II .
I. .r

UNITED STATES DEPARTMENT OF EDUCA HON 

OFFICE FOR CIer RIC HTS 

ms WANAMAKER soimwc, surre 515 memes-n
ion PENN SQUARE 
PHILADELPHIA. PA isms-3525 

 

December 19, 2014

IN RESPONSE, PLEASE REFER To: 03152032


 

 

 

 

The US. Department of Education (Department), Office for Civil Rights (OCR), has completed
its evaluation of the complaint you filed on November 25, 2014, against Frostburg State
University {the University) alleging sex discrimination. You alleged that the College
discriminated against you on the basis of sex when it failed to and equitably respond to
your May 2014 complaint that you were sexually assaulted.

OCR is responsible for enforcing Title IX of the Education Amendments of 1972 (Title 20
U.S.C. 1681, and its implementing regulation, 34 C.F.R. Part 106. Title IX prohibits
discrimination on the basis of sex, by recipients of Federal financial assistance from the
Department. The University receives Federal financial assistance from the Department and,
therefore, is subject to the provisions of Title IX and its implementing regulation.

We are dismissing your allegation for the following reason. OCR is currently investigating an
allegation concerning whether the University fails to and equitany respond to
complaints, reportsr andfor incidents of sexual violence of which it has notice. which will include
your report of sexual assault, and whether students, including you, were subjected to a sexually
hostile environment; OCR Case No. 03-13-2328. Because of this, we will investigate the
University's alleged failure to and equitably respond to your reports of sexual assault
within our current investigation. We will keep you apprised of the progress of our investigation
and inform you of the resolution of that case. if OCR determines that the University must take
corrective action to remedy compliance concerns, we will notify you of the steps the University
must take, as well as when OCR concludes its monitoring of the case.

This letter sets forth 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.

The ul? [iteration ?s uu'sn'on is to proiirole strident mill prirpitrotioii_,lor glottal 
(tyros-luring :vtm'irtr'umil and ensuring equal tl'L't't'ti?.



. 


(W5): mime)

 

Page 2 

 

 

 

if you have any questions, please do
at; 

not hesitate to Contact me at {215) 656?6936 or by e-mail

Sincerely,

"x



 



i?ei?h-Gellman-Beer
Team Leader
Philadelphia Office

 

It .TED STATES DEPARTMENT OF 

escrow 

DELAWARE

OFFICE FOR CIVIL RIGHTS KENTUCKY
THE WANAMAKER BUILDING, SUITE 515 MARYLAND

100 PENN SQUARE EAST
PHILADELPHIA. PA WNW-.3323

 

2i

Ill-ll

December XX, 2014



1

IN RESPONSE, PLEASE REFER TO: 03152032

 

 

(bll?l; {bill?ill?)

 

 

 

HWUNHHS

 

Dear (bit?l: {bitilCl .

 

 

 

 

 

 

The US. Department of Education (Department), Office for Civil Rights (OCR), has completed

its evaluation of the complaint you ?led on November 25, 2014, against Frostburg State

 University (the University) alleging sex discrimination. You alleged that the College
discriminated against you on the basis of sex when it failed to and equitably reSpond to
your May 2014 complaint that you were sexually assaulted.

 

.i OCR is responsible for enforcing certain Federal civil rights statutes and regulations, including?
 F, Title lX of the Education Amendments of 1972 (Title IX)

and its implementing regulation which
prohibit discrimination on the basis of sex, including sexual harassment and violence, in

 

programsryand activities that receive Federal financial assistance from the Department. The
College eceives Federal ?nancial assistance from the Department and, therefore, is subject to
2g the provisions of Title IX and its implementing regulation.
2

 

 

 

:1 within our current

hostile environment; OCR Case No. 03?13-2328. Because of this, we will investigate the
University's alleged failure to and equitably respond to your reports of sexual assault
investigation. We will keep you apprised of the progress of our investigation
and inform you of the resolution of that case. if OCR determines that the University must take
corrective action to remedy compliance concerns, we will notify you of the steps the University
must take, as well as when OCR concludes its monitoring of the case.

 

 

r? This letter sets forth determination in an individual OCR case. This letter is not a formal
statement of OC policy and should not be relied upon, cited, or construed as such. 



 

The Department offducation?s mi35i on is to promote student achievement and preparation for global competitiveness
by fostering educational excellence and ensuring equal acceSs.


WEST VIRGINIA

(W5)

 

Frostbu rg State University
OCR Docket 03-13-2328

lnterviewee: {ml??Ci [Complainant 2)

Interviewer: Amy Niedzalkoski (Team Attorney} and Beth Gellman?Beer (Team Leader]
Date: January 30, 2015
Location: Telephone

The witness was provided with notice of FOIA and the Privacy Act.

We have an understanding of the underlying incident and don?t have questions about that ?we want to
know about what the University did or did not do after you reported the incident.

I understand you reported the incident to the College on 
Right.

To whom did you report the incident?
I reported it to Ilbll?li (Wile) she was 093(5): at the time. I knew her very well. She is the
Ilbli?l; (bl?lcl She is  

How did you make your report?
I told a teacher I was really close with and I said I needed to do something about it before I left. I asked
for advice and he made the call for me. And she ended up having us come in and relay it in person.

Who was the teacher?

{Dita}: {biiftci . He is in the {bile}: (DRUG)

After you described what happened to you, what happened next? I
She called the Chief of Police. i left and was called back 20 minutes later by the Chief who had two
county investigators with her.

When you talked with Ms. Hoffman. I know she called the Chief of Police and that got the criminal
investigation rolling. Did she ever talk to you about Title IX or any kind of internal investigation?

No she didn?t. I think for her credit, she was shocked it was me that called because she started to cry
when came in and it threw her off probably. At that time, I wasn?t sure what Title IX was, wasn?t
informed of it. She just took the information and called the Chief of Police.

Did she ask you if you wanted to call the Chief of Police?
No. Ididn?t know she did so until I got a call 20 minutes later that she wanted me to meet with her.

Did you want her to?
I trusted them that they would to what they needed to do to address it.

What did Chief Smith say?

She called and said she had county investigators who wanted to speak with me and they didn?t want to
do it at the police station. She asked me to come and meet in the President?s conference room.

Did anyone talk to you about interim measures? Like an escort, counseling, etc?
I got one email from land she sent me some outside resources like crisis
hotline kind of stuff but this thing happened five years before.

 

Do you still have that email?
I can check in my gmail account.

Did the School offer any counseling or reimbursement once you moved?
Not at all.

Did you get counseling after the incident?

I went myself, yes. icouldnweek and so once [kinda got it together enough to get
out of bed and get back to things, I went to counseling at the University counseling center. He
encouraged me to report it but I was really scared and eventually I ended up moving next to the police
station.

Do you believe that anyone at the University had reason to know about the incident before you
reported it?
The counselor, but that?s all. Some of my friends but I didn?t tell any adults about it.

We asked the University for some information and one thing they gave us was text messagEs from
Chief Smith that she sent you over the summer, mostly getting in touch to talk do you remember
those?

Yes, i got a few.

Did you ever talk to her over the summer?
Whenever she contacted me I would call her or text her back.

Did you talk to anyone else at the School?

Those were the only contacts I had from the school since I reported the incident. I didn?t hear another
word from the School. I have no further paper trail that this ever happened. I was never given any
documentation on anything.

When you filed your complaint with us, what did you hope the outcome would be?

First off, they recently found that Indira);  which I?m assuming, I guess the
things that happened with he had to cooperate with a County investigation and it wasn?t
conducted by the School. He had to give full cooperation and disclosure and there was another mhe
hung out with that they wanted information on and that other resigned. So it looks likelW
{Didi}; (bi?ici 

(bii?i; {bitilcl 1 They
should have been fired. After my story, i heard from a lot of people that were other girls that it
happened to them, and that impacted a lot stronger on a student than that got away
with it for years and quietly resign. I don?t see any way to change that. But with my story, I wore a wire
and confronted him and none of it was able to be used as evidEnce and they still didn?t fire him. I felt
like they didn?t want it to be a big scandal so they didn?t get a warrant and that they did it that way on

 

 

 

 

 

 

purpose. The biggest thing I want is to raise awareness of this as an issue. It felt like they were annoyed
that I reported it because now they had to deal with it. I want them to be open to students telling them
about it, they don?t answer questions and say no comment. I want them to be more open and less
sneaky.

You mention in your complaint that the school sent out a public announcement about the incident on
Do you have a copy of that announcement? What did it state?

They sent an email to students and staff saying a student who recently graduated came forward or, it
basically sounded like we hooked up and had been involved in sexual activity together and the County
investigators were investigating and if anyone had any information on this incident to call them and let

them know. They didn?t say if anyone has any information about sexual abuse by or
anyone in a position of authority, contact us and let us know.

Do you have any friends who might still have that in their archives?
Yes.

Can you get us a copy of that email?
Yes, sure.

Have any of your friends told you they reported similar incidents or that the University would have
reason to know they were victimized by police or other employees?
No.

Do you have any other information for us?

I heard from a lot of people that {Dime} did this to a lot of other girls and they just felt they

got one report and did what they had to do.

To: US. Department of Education, Office for Civil Rights
Re: Request for Information

In response to a request dated November 25, 2014 and December 19, 2014, the following
information is provided:

Casel'lblt?l; 

a. Complainant: {motel

 

 

b. Respondent: {bill??Cl

c. Date of Complaint:
Date Investigation Commenced:
Date Investigation Completed: (love); (mote) 
Other dates related to investigation: [Wm ?arrest warrant for nova}; 

issued, libit?iiblt?cl  
entered  resultingin .

d. Type of Complaint: Formal

 

 

 

 

8. 

 

 

f. Complaint Reported to: Beth Hoffman, Director of and Title IX Compliance

 

g. Upon being informed of a complaint involving (WW3) FSU Chief of Police

Smith immediately requested that the (bid); {bitit?i 
 (bi{6i; {bitiici I investigate. T1e criminal complaint was investigated
by  ibii5ii (PMS) I An administrative internal summary was completed at
Chief Smith?s request by the libit?i; 
 ibi(5i; (WHO) 

 

 

h. Investigative report; See attached.

 

i. There was no FSU hearing conducted. 
{bite}; (biti?tCi

 

 

 

 

On following a "consensual monitoring? ofwith the
participation ofthe student, was immediately suspended and told
to leave campus until further notice (he was never permitted back on campus).
Criminal charges were filed in Allegany County District Court. No additional
accommodations were deemed necessary for the student aslibii?i; (bi{T(Ci 

FSU on {bit?t {biliici and shortly thereafter left the area.

 

 

{bititci in a plea arrangement with the court, the charges of Second
Degree Sex Offense, Second Degree Assault, and Unnatural or Perverted Practice

against (?Wei were placed on the stet docket based on the following

conditions:

1. He would have no contact with 

He would (bit?i; {blm?i 

3. He would {bit?ilibiiftci 
libit?i; {bili'iCi 

4. He would cooperate with any prosecution stemming from such debriefing;

5. He would not line); (biti?tCi Iduring
the stet period {3 years);

6. He would not seek expungement before the passage of 3 years.



 

 

FSU notified reported the condition of separation to {bitiici 

{biif'ECi

TO:
FROM:

SUBJECT:

November 4, 2014

CONFIDENTIAL MEMORANDUM

 



 

 



 

 

 



 

 

 

 



 

 

 

 



 

 

 

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November 4, 2014

 

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Julianne E. Prizchard
Sergeant

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Maryland State Police

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Sent To 10040449 at r, 2014 8:43:04

H1 bt' 1t? hief Smith. when is a good time to ca1T you?
From {m?kaNC} at Ju1 7, 2014 9:13:30
Hey. m1 I have a lunch break from 12 to 1.

Sent To at Ju1 7, 2014 9:16:40
I have . mee in: at noon but wi11 try to ca11 around 1245
From at Ju] 7, 2014 9:48:55
a' s. 1

Th with any information, that wou1d be awesome. If it's to check in,
you're we1come to ca11 and i rea11y1appreciate it, but don't rush anything on my

account. Thin oing we for me.
Sent at Aug 6, 2014 8:42:28
Hi - Just chec<ing in. Have you been briefed on the tentative agreement with
warnicgg If so ou ok with it? Hope a11 is we11 with you.
From at Aug 6, 2014 9:53:48
I now anything about it. Any way we cou1d ta1k sometime between 12 and 1?

That's my 1unth hour.
Sent To at Aug 6, 2014 9:56:02

try to cal} cu it w111 be c1ose to one.
Sent To at Aug 6, 2014 10:19:48
an e- 

Schedu '11 ca you at noon
Sent lat Aug 21, 2014 12:11:58

lwill be ca111ng you, sorry I missed your caT].

lat Aug 21, 2014 14:26:10
Than 5.

Sent To at SEE 23, 2014 9:03:33
0

Just a note to say Hi. I pe you are we11.

 

 

 

 

 

Page 1

UNITED STATES DEPARTMENT OF EDUCATION REGION 1"
DELAWARE

OFFICE FOR CIVIL RIGHTS KENTUCKY
MARYIANI)


THE WANAMAKER BUILDING, sons 315 WEST 

100 PENN SQUARE EAST
PHILADELPHIA. PA 19101-3323

 

September 9, 2016

IN RESPONSE, PLEASE REFER TO: 03-13-2328 (ft 03-15-2032

Dr. Ronald Nowaczyk
President

Of?ce of the President
Frostburg State University
101 Braddock Rd.
Frostburg, MD 21532-2303

Dear Dr. Nowaczyk:

This letter is to inform you that the US. Department of Education (the Department), Of?ce for
Civil Rights (OCR), has completed its investigation of the above-referenced complaints ?led
against Frostburg State University (University). OCR investigated whether the University failed
to and equitably respond to complaints, reports, andlor incidents of sexual harassment
and sexual violence of which it had notice, including Complainant 1?s and Complainant 2?s
report of sexual assault, and whether as a result, students, including Complainant 1 and
Complainant 2, were subjected to a sexually hostile environment.

OCR investigated this case under the authority ofTitle IX of the Education Amendments of 1972
(Title IX). Title and its implementing regulations, 34 C.P.R. ?106, prohibit discrimination on
the basis of sex in education programs and activities operated by recipients of Federal ?nancial
assistance from the Department. The University receives such Federal funds and, therefore, is a
recipient subject to the requirements ofTitle IX.

In her July 29, 2013 complaint ?led with OCR, Complainant I alleged that the University failed
to provide a prompt and equitable response to a report in March 2013 that the Accused Student
allegedly raped her at an off-campus party in February 2013. During investigation of
Complainant l?s complaint, on December 2, 2014, OCR received a complaint from Complainant
2 {Case #03-15-2032). Complainant 2 alleged that the University did not provide a prom-pt and
equitable response to her May 2014 University complaint that she was sexually assaulted by a
campus police of?cer during the Fall 2009 semester. OCR consolidated the investigation of
Complainant 2?s complaint with the existing investigation of Complainant 1?s complaint.

During the investigation, OCR reviewed documentation provided by Complainant 1,
Complainant 2, and the University, including relevant University policies and procedures, case
?les related to reports of sexual harassment and sexual assault from January 2010 through
November conducted an on-site visit to the University in April and interviewed

I lie Department of Education ?5 mission is to promote student nrltietx?nient and preparation for global competitiveness
lipilfosfering educational excellence and ensuring equal access.



Page 2 Dr. Ronald Nowaczyk

Complainant 1 in January and July 2014, Complainant 2 in January 2015, and University
students and University staff in 2014 and 2015.

SUMMARY OF FINDINGS

OCR found that the University failed to reSpond and equitably to Complainant 1?s
report of sexual violence, and failed to take steps to prevent the recurrence of harassment and
correct its discriminatory effects on Complainant 1. With regard to Complainant 2, OCR also
found that the University failed to conduct an adequate, reliable, and impartial investigation of
Complainant 2?s report of sexual assault, and failed to take steps to prevent the recurrence of
harassment and correct its discriminatory effects. OCR also found that the University?s handling
of the majority of other sexual harassment and sexual assault complaints brought by other
Students from January 2010 through November 2014 were not prompt and/?or equitable, as
required by Title IX.

OCR found that the University?s policies and procedures and Notice of Non-Discrimination that
were in effect at the time of Complainant 1?s and Complainant 2?s report of sexual assault were
not compliant with Title IX. When OCR opened this investigation in 2013, the University had
five (5) policies to address complaints of sexual harassment and sexual violence. 
investigation found that none of these policies met Title [X?s procedural requirements. In 2016,
the University consolidated all of its previous policies into a single policy that addresses all
complaints of sexual harassment and sexual violence that are brought by or against students,
employees, and third parties. investigation found that, while the 2016 Title IX policy and
procedure made strides towards compliance with Title [X?s procedural requirements, several
compliance concerns remain.

More specifically, OCR found violations in the areas of the University?s Notice of Non-
Discrimination; former and revised grievance procedures; Title IX Coordinator?s duties,
responsibilities, and training; record keeping practices, and handling of Complainant 1?s and
Complainant 2?s sexual violence complaints, as well as the majority of Title IX complaints
reported to the University between January 2010 and November 2014. In addition, 
investigation identified concerns regarding the University?s handling of criminal complaints;
training provided to the campus community; student climate information; and campus climate
assessment and response. OCR also notes that although our investigation identi?ed concerns
regarding the University?s designation of responsible employees and complainant confidentiality,
those concerns were remedied by the 2016 Title IX policies and procedures.

On September 6, 2016, the University voluntarily entered into a resolution agreement
(Agreement), which requires that the University take specific steps to address the identi?ed
violations.

This letter summarizes the applicable legal standards, the evidence gathered during the
investigation, determinations and the remedies the University has agreed to implement to
resolve its non-compliance with Title IX.

LEGAL STANDARDS

The regulation implementing Title IX, at 34 C.F.R. 106.9, requires a recipient to implement
speci?c and continuing steps to notify all applicants for admission and employment, students and

Page 3 Dr. Ronald Nowaczyk

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 of
Non-Discrimination must also state that questions regarding Title may be referred to the
recipient?s Title IX coordinator or to OCR.

The Title IX implementing regulation, at 34 C.F.R. 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. to notify all students and employees of the name (or title),
of?ce address, and telephone number of the designated employee(s).

The Title IX regulation at 34 CPR. 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 bene?ts of, or be subjected to discrimination in education programs or activities
operated by recipients of Federal ?nancial 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 suf?ciently serious that it interferes with or limits a
student?s ability to participate in or bene?t 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
relationship benveen 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 suf?ciently severe, create a hostile
environment. For example, a single instance of rape is suf?ciently 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 complainands) 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 identi?ed 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

Page 4 Dr. Ronald Nowaczyk

to remedy the effects of both the initial sexual harassment and the effects of the recipient?s
failure to respond 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.

A recipient is responsible under the Title IX regulations for the nondiscriminatory provision of
aid, bene?ts, and services to students. Recipients generally provide aid, bene?ts, 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 bene?t on a student?s submission to
unwelcome sexual conduct, or engages in sexual harassment that is suf?ciently serious to deny
or limit a student?s ability to participate in or bene?t 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. 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 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 and the accused a prompt and equitable resolution.

BACKGROUND

The University is a public university that is part of the University System of Maryland 
The USM is comprised of 12 postsecondary institutions, including the University. Although the
Board of Regents? duties include, among other things, formulating policies that govern the
member institutions, the University is responsible for adopting and implementing its own
policies and procedures.

When OCR initiated this investigation in academic year 2013-2014, the University had 4,703
undergraduate students, of whom 2,303 were female and 2,400 were male, and 770
graduate students, of whom 466 were female and 304 were male. During the 2015-
16 academic year, the University had 4,961 undergraduate students, of whom 2,544 were
female and 2,41? were male, and 786 graduate students, of whom 450 were female
and 336 were male.

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 18 sex offenses.

As of the date of the agreement in this matter, the University has not reported crime data for

2015.

FACTS AND ANALYSIS

Page 5 Dr. Ronald Nowaczyk

1. Notice ofNon?Discrimination

The University?s Notice of Non-Discrimination was published during the 2013-14, 2014?15, and
the 2015-16 school years on the University?s Diversity and Equal Opportunity webpage. The
Notice of Non-Discrimination does not state that ?sex? is a protected basis or that inquiries
concerning the application of Title IX may be referred to the Title IX Coordinator or to OCR. In
addition, the Notice of Non-Discrimination is not published in each announcement, bulletin,
catalog or application form which is used in connection with the recruitment of students or
employees, or unions or professional organizations holding collective bargaining or professional
agreements with the University. In the few publications in which the Notice of Non-
Discrimination is referenced, the publication refers to the Policy on Non?DiscriminationlEqual
Opportunity and states where it may be located.

OCR therefore concludes that the University?s Notice of Non?Discrimination does not comply
with the requirements of Title IX.

2. Grievance Procedures

investigation found that at the time the incidents involving Complainant 1 and
Complainant 2 were reported, the University had ?ve (5) policies and procedures that addressed
sexual harassment and sexual violence:

(1) University System of Maryland Policy and Procedures on Sexual Assault (USM Sexual
Assault Policy);

(2) Frostburg?s Procedures for Implementing the USM Policy (University is Sexual Assault
Procedures);

(3) Sexual Harassment Policy;

(4) FS Procedures for Pursuing Complaints of Discrimination and Sexual Harassment
(Discrimination and Sexual Harassment Procedures); and

(5) Code of Student Conduct.

The USM Sexual Assault Policy was an interim policy and in June 2014, the USM Board of
Regents approved the Policy on Sexual Misconduct for the University System of Maryland
(Revised USM Sexual Misconduct Policy). The Revised USM Sexual Misconduct Policy
superseded the USM Sexual Assault Policy. Collectively these policies and procedures (including
the Revised USM policy) will be referred to herein as the ?former Title IX policies and
procedures.?

In January 2016, the University adopted the Gender-Based Harassment and Violence Policy
(201 6 Harassment and Violence Policy) and the Procedures for Investigating and Resolving
Reports of Prohibited Conduct Under the University ?s Gender-Based Harassment and Violence
Policy (20% Harassment and Violence Procedures) (collectively referred to as the 2016
Harassment and Violence Policy and Procedures). The 2016 Harassment and Violence Policy
and Procedures replaced all of the University?s previous Title IX policies and procedures.

Page 6 Dr. Ronald Nowaczyk

investigation found that the University?s former Title IX policies and procedures did not
satisfy the University?s obligation to provide for the prompt and equitable resolution of
complaints of sexual harassment, including sexual violence. In particular, the former Title IX
policies and procedures were at times confusing and contradictory to complainants, accused
students, members of the University community, and third parties. Although the University has
made progress in correcting the deficiencies in the University?s former Title policies and
procedures through the adoption of the Harassment and Violence Policy and Procedures in
January 20l6, OCR concludes that the revised policy and procedures are not fully compliant
with the requirements of Title IX.

Former Title IX Policies and lF'roceduresL

USM Sexual Assault Policy, Revised USM Sexual Assault Policy, and the University?s
Sexual Assault Procedures

The USM Sexual Assault Policy and the Revised Sexual Assault Policy (collectively USM Sexual
Assault Policies) were issued by the USM as a directive and guidance to all USM institutions,
including the University, about the required contents of their sexual assault policies.2

The USM Sexual Assault Procedures set forth information required by the USM Sexual Assault
Policies and were speci?c to the University. While they were published and readily available to
the University community, the USM Sexual Assault Procedures did not provide adequate notice
to students and employees of the procedures and did not provide for an adequate, reliable, and
impartial investigation, including an equal opportunity to present witnesses and relevant
evidence. Speci?cally, the USM Sexual Assault Procedures:

0 Provided multiple, and at times conflicting, options for who may initiate a complaint of
sexual assault and to whom it should be made. In one instance, it referred complainants
to the Director of Public Safety, and at another point it identi?ed the University Code of
Conduct System reporting system without providing any contact information or details
about the process. It also referred complainants to the University Judicial Administrator
in the Of?ce for Student and Educational Services (3138).

II Directed victims who wished to file a complaint against an employee to file a complaint
with ?the vice president of the division in which the accused is employed,? but no contact
information or procedures were provided. OCR further notes that the Former Title IX
Coordinator and the Dean of Students disputed the University policies and procedures,
stating that complaints against employees were to be ?led with the Title IX Coordinator.

0 Failed to provide a process for an adequate, reliable, and impartial investigation,
including an equal opportunity to present witnesses and relevant evidence. Although the
Sexual Assault Procedures stated hearings for sexual assault would be conducted through

 

All of the University?s former Title IX policies and procedures, except the Discrimination and Sexual Harassment
Procedures, were published in the University?s Policy Statements Booklet, which is an annual University publication
available on the University?s website provided to students, faculty, and staff by the Division of Student Affairs that
contains policies regarding substance abuse, safety, and standards of conduct for students, faculty, and staff. The
Discrimination and Sexual Harassment Procedures were published on the Of?ce of Human Resource?s webpage
and the Of?ce of and Title IX Complianee?s webpage.

2 The University included the USM Sexual Assault Policies in the University?s Policy Statement Booklet which was
distributed to its students, employees, and third parties.

Page 7 Dr. Ronald Nowaczyk

the hearing procedures established in the Code of Student Conduct, investigation
concluded the Code of Student Conduct also did not provide for an adequate, reliable, and
impartial investigation as required by Title IX.

0 Noted that inquiries concerning Title IX may be referred to OCR but did not provide
OCR's contact information.

0 Did not provide for the following: designated and reasonably prompt timeframes for
major stages of the grievance process, as well as the process for extending timeframes;
written notice to the parties of the outcome of the complaint; an assurance that the
institution will take steps to prevent recurrence of harassment and correct its
discriminatory effects on the complainant and others, if appropriate; interim measures; a
statement that the standard of review is the preponderance of the evidence; a prohibition
against retaliatory harassment; an adequate de?nition of sexual harassment; or the right to
proceed with a criminal investigation and a Title IX complaint simultaneously.

OCR therefore concludes that the University?s USM Sexual Assault Policies and the USM Sexual
Assault Policies Procedures did not comply with the requirements of Title IX.

Sexual Harassment Policy

The Sexual Harassment Policy provided minimal guidance regarding resources available to a
victim of sexual harassment, such as how and where to ?le a complaint or how such a complaint
would be investigated. Although the Sexual Harassment Policy de?ned sexual harassment and
provided numerous examples of conduct that could rise to the level of sexual harassment, neither
the de?nition nor the examples mentioned sexual violence or sexual assault as a form of sexual
harassment. in addition, the Sexual Harassment Policy did not state whether it applied to
students, employees, andlor third parties. In addition, the Sexual Harassment Policy did not
provide adequate notice to students and employees of the procedures, including where
complaints may be ?led, that was easily understood.

OCR also determined that the Sexual Harassment Policy did not provide for an adequate,
reliable, and impartial investigation, including an equal opportunity to present witnesses and
relevant evidence. While the Sexual Harassment Policy stated that the rights of both the
offender and the offended would be protected, including protection from retaliation, it directed
the reader to the Discrimination and Sexual Harassment Procedures, which as set forth more
fully below, did not provide for an adequate, reliable, and impartial investigation. Additionally,
the Sexual Harassment Policy inappropriately stated that ?in assessing whether a particular act
constitutes sexual harassment forbidden under this policy, the rules of common sense and reason
shall prevail. The standard shall be the perspective of a reasonable person within the campus
community.? This standard falls short of the preponderance of the evidence standard required to
satisfy Title IX.

In addition, the Sexual Harassment Policy did not provide for the following: designated and
reasonably prompt timeframes for major stages of the grievance process, as well as the process
for extending timeframes; written notice to the parties of the outcome of the complaint; an
assurance that the institution will take steps to prevent recurrence of harassment and correct its
discriminatory effects on the complainant and others, if appropriate; interim measures; a
prohibition against retaliatory harassment; or the right to proceed with a criminal investigation
and a Title IX complaint simultaneously.

Page 8 Dr. Ronald Nowaczyk

OCR therefore concludes that the University?s Sexual Harassment Policy did not comply with
the requirements of Title IX.

Discrimination and Sexual Harassment Procedures}

The University?s Discrimination and Sexual Harassment Procedures are grievance procedures
for ?ling complaints of discrimination based on race, color, creed, religion, national origin, sex,
age, disability, veteran status, and sexual orientation. While the Discrimination and Sexual
Harassment Procedures adequately provided for written notice to the parties of the outcome of
the complaint and prohibited retaliation, they did not provide for: adequate notice to students and
employees of the procedures, including where complaints may be ?led, that was easily
understood; the application of the procedures to complaints alleging discrimination or
harassment carried out by employees, other students, and third parties; an adequate, reliable, and
impartial investigation, including an equal opportunity to present witnesses and other relevant
evidence; timeframes for all major stages of the grievance process, audior a process for
extending timelines. Speci?cally, the Discrimination and Sexual Harassment Procedures:

0 Did not provide that the parties had an equal opportunity to provide evidence and
witnesses during the investigation.

- Did not provide any timeline with respect to the informal complaint process, and with
respect to formal complaints, the procedures did not provide a timeframe, but instead
stated that the Title IX Coordinator would conclude the investigation of the facts as
as possible.

0 Required complaints to be ?led within 60 calendar days of the complainant having
reasonable knowiedge of the act and complaints against a faculty member were directed
to be brought within 60 calendar days after the last day of the semester in which the
incident occurred.

0 Stated that the Title IX Coordinator would make the determination as to whether an
investigation of the dispute would be undertaken or if the matter would proceed to a
hearing, but did not state how this determination would be made.

- Did not de?ne University community member and it was unclear who could make a
complaint of discrimination or sexual harassment pursuant to these procedures. We note,
however, that the Former Title IX Coordinator explained that ?member of the University
community,? as stated in the procedures, could include a third party, such as a vendor.

Stated that complainants could ?le with OCR and other agencies, but did not provide
contact information for OCR or any other agency.

in Included an informal process that did not state that the informal process was voluntary
and that mediation may not be used in a complaint of sexual assault or sexual violence.
In addition, the Former Title lX Coordinator stated that mediation was an available
option for cases alleging sexual assault.

Did not provide the following: an assurance that the University would take steps to
prevent the recurrence of harassment and correct its discriminatory effects on the
complainant and others, if appropriate; interim measures; or a statement that the
preponderance of the evidence was the appropriate evidentiary standard to be utilized.

 

3 While the University?s Sexual Assault Procedures were clearly intended to set forth the information required by
the USM Sexual Assault Poiicies, several key administrators insisted that the Discrimination and Sexuai? Harassment
Procedures were developed by the nivcrsity to meet the requirements set forth in the USM Sexual Assault
Policies.

Page 9 Dr. Ronald Nowaczyk

i Prohibited retaliation, but did not contain policies and procedures to protect against
retaliatory harassment.

0 Did not specify that sexual violence is a form of sexual harassment.

OCR therefore concludes that the University?s Discrimination and Sexual Harassment
Procedures did not comply with the requirements of Title IX.

Code ofSrudent Conduct

The Code of Student Conduct set forth conduct that was prohibited by the University and subject
to student conduct proceedings, including sexual harassment and sexual offenses labeled as
?sexual misconduct and ?sexual misconduct 

The Code of Student Conduct appropriately identi?ed the preponderance of the evidence as the
evidentiary standard of review for the hearing. In addition, it provided to both parties an equal
opportunity to present witnesses and other evidence at the hearing and access to information used
at the hearing; the opportunity to hear, question, and challenge adverse testimony or witnesses
through the hearing panel; advisers to provide support at the hearing; and the right to appeal the
hearing determination. However, it did not provide adequate notice to students and employees of
the procedures, including where complaints may be ?led; an adequate, reliable, and impartial
investigation, including an equal opportunity to present witnesses and other evidence during the
investigation of the complaint; designated and reasonably prompt timeframes for all major stages
of the grievance process or a process for extending timeframes; adequate written notice to the
parties of the outcome of the complaint; interim measures for the victim; an assurance that the
University would take steps to prevent recurrence of harassment and to correct its discriminatory
effects on the complainant and others, if appropriate; policies and procedures to protect against
retaliatory harassment; or notice to the complainant of the right to proceed with a criminal
investigation and a Title IX investigation simultaneously. Speci?cally, the Code of Student?
Conduct:

0 De?ned sexual harassment, but the de?nition did not include sexual assault or sexual
violence.

I Stated that any faculty, staff, or student may refer to a University Code Administrator a
student or student organization suspected of violating the Code of Student Conduct, but it
did not provide direction regarding the identity or contact information of the University
Code Administrator(s) or the process for making such a referral. In addition, 
investigation found that there was contradictory evidence regarding whether all
complaints against students must be ?led under the Code ofSrudenI Conduct procedures.
Speci?cally, the Former Title IX Coordinator told OCR that if a complaint alleged sexual
harassment or assault by a student against an employee, the Discrimination and
Harassment Procedures would apply. That distinction, however, was not evident from
the Code of Student Conduct.

- Did not provide that third parties may bring a complaint against a student by invoking the
Code of Student Conduct.

1- Permitted an accused student to have an attorney present at the hearing if criminal
charges were also likely, but the complainant was not similarly entitled to have an
attorney present.

Page 10 Dr. Ronald Nowaczyk

0 Provided that, during the sanctionng phase, the referred student may present character
references or statements to testify on his or her behalf, but the complainant was not
provided an equal opportunity for character witnesses.

- Raised a concern regarding the impartiality under the Code of Student Conduct because
Key Administrator 2, who served as an advocate for victims to help guide them through
the Code of Student Conduct process, also served as a hearing panel member.

- Contained general timeframes, including that referrals should be made in a ?timely
manner,? witness statements will be provided to the parties ?in a reasonable time prior to
the hearing to allow both parties to review and challenge them,? and a written decision
shall be sent to the referred student ?within a reasonable period of time.?

I Provided that a written decision would be sent to the referred student at hisfher address or
by email within a reasonable period of time, but it did not provide that the complainant
would also receive a copy of the outcome in writing. Moreover, if a victim of a crime of
violence or non-forcible sex offense wished to receive the results of any disciplinary
hearing conducted by the University against a student who was the alleged perpetrator of
the crime or offense, he or she was required to submit a request in writing. In addition,
although the Code of Student Conduct permitted appeals, it did not provide for written
notice to the parties of the outcome of the appeal.

- Included the option for mediation but did not state that mediation is not appropriate for
cases of sexual assault.

OCR also has concerns that the Dean of Students informed OCR that the University conducted
only a limited investigation to determine if there was enough information to indicate that there
was a likelihood that a violation of policy occurred, and that the subsequent judicial panel
hearing constituted the University?s investigation.

OCR therefore concludes that the University?s Code ofSrudenr Conduct did not comply with the
requirements of Title IX.

Title IX Website and 2016 Revisions to Title IX Policies and Procedures

The University currently has a Title IX webpage that serves as a comprehensive Title IX
resource. The webpage identi?es the University?s Title IX and University Compliance
Coordinator (Current Title IX Coordinator) and the Deputy Title IX Coordinator and provides
the telephone number and email address for each. We note that Key Administrator 2 is now
designated as a Deputy Title IX Coordinator. The webpage contains links entitled ?reporting
options," ?sources of support,? ?de?nitions,? ?reporting form,? and ?policies and procedures.?

The reporting options page provides a comprehensive list of the different ways a victim may
report sexual harassment or sexual violence, as well as contact information for the University
individuals and offices who may provide assistance in doing so. The sources of support page
provides detailed information regarding various on and off campus resources available to provide
assistance to victims, with accompanying contact information and a short description of each
resource. The de?nitions page includes a definition for con?dential employee, gender based
violence, relationship violence, sexual exploitation, sexual harassment, sexual intimidation,
sexual misconduct, sexual violence, retaliation, stalking, interim measures, and responsible
employee. OCR notes that the Title IX webpage states that all employees, except those of the
health center and counseling center, are responsible employees obligated to report incidents of

Page 11 Dr. Ronald Nowaczyk

prohibited conduct. The reporting form page is an online reporting form, and the cover page also
provides instructions for anonymous reporting. The form also states that all reports are directed
to the Title TX Coordinator and provides her name and contact information, along with the
contact information for on and off campus resources. The form allows the individual to
designate the speci?c type of misconduct that took place, the location of the misconduct, the
complainant?s identi?cation, the respondent?s identi?cation and the details of the incident.
Lastly, the policies and procedures page includes a link to the 2016 Harassment andr Violence
Policy and Procedures.

2016 Harassment and Violence Policy and Procedures

OCR concluded that 201' 6 Harassment and Violence Policies and Procedures are compliant with
Title IX in a number of areas. The following summary describes the provisions of the 20l6
Harassment and Violence Policies and Procedures that are not compliant:

Although the 2016 Harassment and Violence Policy and Procedures provide for timeframes for
many of the major stages of the grievance process, it does not provide timeframes for all of the
major stages. Speci?cally, timeframes are not provided for when the Title IX Coordinator or
designee will issue a Notice of Investigation to the parties, for when the University will
determine appropriate sanctions when the respondent is an employee, or a timeframe for when
the Title IX Coordinator or designee will issue a Notice of Investigative Finding to the parties.

The 2016 Harassment and Violence Policy and Procedures provide that each party will receive
written notice of the outcome of a voluntary resolution, the ?nal investigative report, and the
appeal. However, the policy does not explicitly state that written notice will be provided to the
complainant when the Title IX Coordinator determines that no ?irther action should be taken
after the initial review.

OCR therefore concludes that the University?s 201 6 Harassment and Violence Policy and
Procedures do not comply with the requirements of Title IX.

3. Responsible Employees

The former Title IX policies and procedures were largely silent with respect to the responsibility
of employees to report sexual harassment or sexual assault. Only the Sexual Harassment Policy
addressed responsible employees, stating that ?members of the University community with
personal knowledge of incidents of harassment are encouraged, and University employees are
required, to report such knowledge to the Title IX Coordinator.?

By contrast, the current Title IX website and the 2016 Harassment and Violence Policy and
Procedures inform the campus community of which employees are considered responsible
employees and which are considered con?dential employees, and define each of those terms.
Speci?cally, it states that responsible employees who learn of or witness prohibited conduct are
required to report it to the Title IX Coordinator, and except for confidential employees, all
University employees have been designated as responsible employees by the University.
Con?dential employees are defined as employees who are not required to report incidents, and
are limited to employees of the health and counseling centers. In addition, the 2016 Harassment
and Violence Policy and Procedures advises that the University police can assist individuals in
making a report to law enforcement and explains that reporting an incident to the University

Page 12 Dr. Ronald Nowaczyk

police will trigger the University police?s obligation as responsible employees to report the
conduct to the University as well.

has concerns that the previous Title IX policies and procedures did not adequately
designate and categorize University employees as either responsible employees or confidential
resources. OCR notes, however, that the University?s current Title IX policies and procedures
do include appropriate designations and categories.

4. Con?dentiality

Prior to 2016, con?dentiality was addressed only in the Discrimination and Sexual Harassment
Procedures, which provided that ?con?dentiaiigi be maintained to the extent permitted by
law, except insofar as information needs to be disclosed so that the University may re?ectiver
investigate the matter and take corrective action.? The policy did not specifically address
factors such as when a request for con?dentiality would be honored, the conditions under which
such a request would not be honored, or the individual(s) responsible for deciding whether a
complainant?s request for confidentiality would be honored. In addition, the former Title IX
policies and procedures did not address how student requests to not pursue campus judicial
action would be addressed.

The 2016 Harassment and Violence Poiicies and Procedures provide de?nitions for privacy and
con?dentiality, explain the differences between each, and state that when a complainant requests
that their name or other identifiable information not be shared or that no formal action be taken,
the Title IX Coordinator, in consultation with the Title IX team, will balance this request with the
University?s obligation to provide a safe and non-discriminatory environment to the victim and
the rest of the community. If the University is unable to honor the request, the Title IX
Coordinator will inform the victim prior to starting a formal investigation.

has concerns that the previous Title IX policies and procedures did not adequately
address the University?s obligations when a victim requests con?dentiality andior elects not to
proceed with a complaint. OCR notes, however, that the University?s current Title IX policies
and procedures appropriately address the University?s obligations regarding confidentiality.

5. Title IX Coordinator

The Former Title IX Coordinator was also the University?s Director of the Americans with
Disabilities ActiEqual Employment Opportunity According to the Former Title IX
Coordinator, her Title IX Coordinator duties included overseeing all Title IX policies and
procedures, working with the athletic department to ensure equity, working with SES on its
grievance procedures, keeping abreast of Title IX complaints that were filed, as well as their
conclusions and outcomes, and investigating Title IX complaints that were made by or against
faculty or staff.

The Former Title IX Coordinator did not oversee all of the University?s efforts to comply with
and carry out its Title IX responsibilities and programs. Although the Former Title IX
Coordinator was notified of some of the incidents brought against employees and students, the
evidence showed that the Dean of Students bore the primary responsibility for the handling of
such complaints, with little to no oversight by the Former Title IX Coordinator. Key
Administrator 2 also held signi?cant Title IX responsibilities, including serving as a case

Page 13 Dr. Ronald Nowaczyk

manager for student victims of sexual assault and assisting students with obtaining services, and
with the University?s judicial process, again with little to no oversight by the Former Title IX
Coordinator. In addition, based on the information provided by the University and its
administrators, OCR found that the Former Title IX Coordinator did not receive sufficient
training and did not sufficiently implement the University?s Title IX requirements. Information
provided by the University also showed, as discussed below, that the Former Title IX
Coordinator only received notice of ?ve of 43 reports of sexual violence and assault that
occurred from January 2010 through November 2014 and, thus, was not in a position to identify
problematic individuals, groups, or locations or to assess whether patterns of conduct or serial
perpetration occurred that the University should address.

OCR also found that, although the Former Title IX Coordinator?s name, title, office address, and
phone number appeared in some of the University?s Title IX policies and procedures, and the
University?s sexual assault pamphlet and brochure, it did not appear in widely disseminated
publications such as the course catalog. As already noted, it also did not appear in the
University?s Notice of Non-Discrimination, USM Sexual Assault Policy, or the UniversiIJ/s
Sexual Assault Procedures.

In January 2015, the University named the new Title IX and University Compliance Coordinator
(Current Title IX Coordinator). The Current Title IX Coordinator reported to OCR that since she
was hired, the University has revised and enhanced the role of the Title IX Coordinator.

OCR therefore concludes that the University did not comply with Title IX with respect to the
training of the Former Title IX Coordinator and assigning her suf?cient responsibilities and
duties. OCR will review and analyze the role of the University?s Current Title IX Coordinator
during its monitoring of the Agreement.

6. Handling of Criminal Complaints

The University?s former Title IX policies and procedures did not address how the University
handled criminal complaints that were brought against students, whether a criminal complaint
could trigger a University investigation, or the effect of a criminal complaint on the University?s
Title IX investigative process. Notwithstanding, investigation did not reveal any
compliance concerns regarding the University?s practices regarding the handling of criminal
complaints.

The University?s Chief of University police stated that the University did not have a
memorandum of understanding with the local police or state police, but that the University police
shared a reporting system with the local police, and had a verbal agreement with the state police
that the state police would notify the University police if a University student was involved in a
sexual assault. Subsequently, the University provided a copy of a 2012 Memorandum of
Understanding (MOU) between various agencies, including local law enforcement and the
University, stipulating that the purpose of the agreement is to coordinate multiple agency law
enforcement units to investigate violations of Maryland law. The University explained that,
under the MOU, University police report major crimes (including sexual assault) to local law
enforcement; local law enforcement then provides a trained investigator to conduct the
investigation.

Page 14 Dr. Ronald Nowaczyk

OCR has concerns that the University?s MOU does not speci?cally address the coordination of
investigations of sexual harassment and sexual assault. OCR will review and analyze the
University?s handling of criminal complaints and the MOU during its monitoring of the
Agreement.

7. Training

OCR found that at the time of the underlying incidents in this complaint, there were multiple
de?ciencies in the University?s Title IX training, including the quality of the training that was
provided to those charged with implementing Title IX and the University?s Title IX grievance
procedures, as well as the training that was provided to the campus community. Documentation
provided by the University, as well as interviews with the Former Title IX Coordinator revealed
that the Former Title 1X Coordinator and Key Administrator 2, who served as a liaison for
victims in the University?s Title IX process, were not adequately trained regarding their Title IX
responsibilities.

In addition, the University informed OCR that all employees are required to take an online
training regarding sexual harassment. OCR reviewed the online sexual harassment training
materials and found that, while it addressed sexual harassment in the employment context, it did
not address sexual harassment/sexual violence as it relates to students or Title IX, and it did not
provide any information specific to the University, such as the University?s procedures for
reporting sexual harassmentfviolence or responsible employees. Additionally, while the Former
Title Coordinator told OCR that responsible employees were informed of their reporting
obligations during workshops and training, the University did not provide any speci?c
information regarding those workshops or trainings.

OCR also notes deficiencies with the training of former panel hearing members. While the Code
ofStudenI Conduct stated that all new hearing panel members would participate in an orientation
session, it did not provide for Specialized training for panel members who sat on panels where
the alleged violation was sexual harassment or sexual assault. The University advised OCR, and
Key Administrator 2 confirmed, that the Dean of Students provided hearing panel members with
training speci?c to sexual harassment and sexual assault. Panel members also received periodic
additional training related to sexual harassment and sexual assault, such as training by
community organizations and the local police. However, one hearing panel member told OCR
that specialized training was not mandatory for hearing panel members. According to the
Current Title IX Coordinator, the University has revised and enhanced the training it provides to
the campus community.

OCR therefore concludes that the University?s training of relevant staff and students did not
comply with the requirements of Title IX. OCR will review and analyze the training the
University currently provides to the campus community during its monitoring of the Agreement.

3. Outreach

OCR found that the University provided the campus community with outreach regarding issues
surrounding sexual harassment and sexual violence in a variety of ways. For example, the
President?s Advisory Council Against Gender Based Violence (Advisory Council) was
comprised of administrators, faculty, and staff and was charged with coordinating programs and
distributing information and literature to the campus community, such as a campaign regarding

Page 15 Dr. Ronald Nowaczyk

consent. One of the members of the Advisory Council explained to OCR that the Advisory
Council was started in 2011 to bring together staff, faculty, students, and administrators for a
coordinated University response for education programming, policy, and training regarding
sexual harassment and assault. At the time of visit in April 2014, there were at least two
campus-wide programs each semester regarding sexual violence, as well as additional
programming for students during the first several weeks of the academic year where incidents are
more likely to occur. Additionally, Title IX policy statements, including the student conduct
process, are emailed to students every year. Moreover, the Current Title IX Coordinator advised
OCR that the University has revised and enhanced its outreach to the campus community.

OCR does not have concerns regarding the University?s outreach efforts.

9. Student Climate Information and Climate Assessmenthesponse

Key Administrator 2 and Key Administrator I told OCR that the University assesses student
climate through the National College Health Assessment 11 (the Assessment). The Assessment is
a survey that is issued every two years to gauge a number of health-related topics, including
sexual health. Key Administrator 2 used the survey results to inform the University?s practices
and to address trends regarding sexual harassment and assault. The University provided the
results of the 2009, 201 l, and 2013 surveys that were completed by undergraduates. OCR has
concerns regarding the low response rate to the surveys: 21% in 2009, 15.8% in 201 l, and 1 1.6%
in 2013. In addition, 70% of the students who responded to the 2013 survey reported they did
not believe they received information regarding sexual assault from the University, which also
gave rise to concerns. In addition, although there are media reports of a 2015 climate survey, the
University did not provide the results to OCR.

OCR has concerns regarding the University?s assessment of student climate given the low
response rate of prior surveys. OCR will analyze the University?s assessment of student climate
during its monitoring of the Agreement.

10. Record Keeping Practices

In reviewing the data for the 43 other incidents that occurred from January 2010 through
November 2014, OCR observed that the University did not provide complete documentation for
thirty-one incidents, including witness interviews, investigative reports, communications with
parties, written notice of the outcome to the victim, or documentation confirming that the victim
was advised of on-campus and off-campus resources, including interim measures. Despite the
statements of the Dean of Students and Key Administrator 2, the data revealed that the Former
Title IX Coordinator was only noti?ed of ?ve of the incidents and, thus, was not in a position to
identify problematic individuals, groups, or locations.

OCR therefore concludes that the University did not have record keeping practices that comply
with the requirements of Title 1X.

11. Handling of Complaints and Incidents of Sexual Assault and Sexual Violence

OCR investigated whether the University provided prompt and equitable responses to sexual
violence complaints, reports andfor other incidents of which it had notice (knew or should have
known about), including those filed by the Complainant 1, Complainant 2, and other students?

Page 16 Dr. Ronald Nowaczyk

OCR also investigated whether any failure by the University to 
and equitably respond to complaints of sexual assaultfviolence of which it had notice, resulted in
individuals, including Complainant 1 and Complainant 2, continuing to be subjected to a
sexually hostile environment.

Complainant 1' Incident

Complainant 1 was a senior at the University during the Spring 2013 semester. She resided in an
on campus residence hall and was involved in student government. The Complainant alleges
that, on February 27, 2013, she was raped by a fellow student (Accused Student) at an off
campus party. Soon after the incident, Complainant 1 left campus to stay at her parents? home.
It is undisputed that, on or about March 3, 2013, Complainant 1?s father called Key
Administrator 1 and an employee to inform them that Complainant 1 would be out of school for
a few days as a result of the trauma from the rape. On March 4, 2013, Key Administrator 1
noti?ed Complainant 1?s professors that she missed or would be missing some classes due to
medical reasons.

Key Administrator 1 oversees various University functions, including but not limited to, student
conduct. It is undisputed that he did not report the alleged tape to SES or anyone else at the
University. Key Administrator I told OCR he did not report the incident because Complainant
1?s father asked him to keep it in confidence and that, although he realized he had to report it at
some point, he wanted to have a conversation with Complainant 1 before doing so in order to
make her aware of his obligations. Key Administrator 1 also told OCR that a conversation with
Complainant I became unnecessary because within a week of his conversation-with Complainant
1?s father, the Dean of Students informed him that Complainant 1 had reported the incident to
the police.

On March 3, 2013, Complainant 1 reported the incident to the state police. The Chief of
University police told OCR that one of her of?cers noti?ed her of Complainant 1?s report to the
state police, and that it is her office?s practice to immediately notify the Dean of Students or the
Title IX Coordinator of any such reports. However, investigation did not ?nd evidence
showing that the campus police informed SES or the Title IX Coordinator of Complainant 1?s
report to the state police. In addition, the Dean of Students told OCR that SES did not learn of
the incident until March 14, 2013, when Complainant I returned to campus and discussed the
situation with him.

Complainant I told OCR that, during her March 14, 2013 meeting with the Dean of Students she
told him that she did not feel safe on campus because, following the incident, the Accused
Student tried making contact with her several times, and started following her on campus. In
response, by email dated March 14, 2013, and in person on that date, the Dean of Students
advised Complainant and the Accused Student to avoid any contact with the other either in
person, written, verbal or electronic form. in addition, Complainant 1 told OCR that the Dean of
Students informed her that she could receive counseling from the University?s counseling center
or a community counseling center, but that he did not discuss any other interim measures with
her. The Dean of Students, however, told OCR that he provided Complainant 1 with a pamphlet
that described all available interim measures. OCR reviewed the pamphlet and found that, with
respect to interim measures, it stated only that ?a survivor may request alternative academic,
living, or employment situations if such alternatives are available, feasible, and appropriate to the
facts of the sexual assault.? After the incident, Complainant 1 moved back home with her

Page 17' Dr. Ronald Nowaczyk

parents who lived about one hour away because she did not feel safe and she continued to see the
Accused Student on campus.

Complainant informed OCR that, as a result of the incident, she experienced some dif?culty in
her classes. The only interim measures offered by the University were an offer for counseling, as
well as to allow her a late withdrawal from her classes and an offer to contact her professors to
explain that the she was having difficulties because of the incident. Complainant I chose to
?nish her classes and made arrangements with all of her teachers on her own in order to
complete her coursework. Last, Complainant 1 told OCR that she was initially told that she
would face disciplinary action for engaging in underage drinking the night of the incident. There
is no dispute that Complainant was not disciplined for engaging in underage drinking the night of
the incident. However, the Dean of Students acknowledged to OCR that he counseled
Complainant I about her consumption of alcohol the evening of the incident.

On March 14, 2013, the Accused Student was criminally charged with rape and other offenses as
a result of Complainant 1?s report to the state police. The state police notified the campus police
of the charges, and on March 15, 20l3, the Chief of University police called SES and advised the
Assistant Dean that the Accused Student had been charged with rape. Upon review of the
statement of charges, the University learned that there was information to indicate a possible
violation of University policy. The Dean of Students proceeded with setting up a judicial board
hearing panel.

The judicial board hearing was originally scheduled for April 2, 2013; however, at the request of
the Accused Student?s attorney, the hearing was delayed until April 12, 2013. Complainant I
told OCR that she was not aware that she could have retained an attorney to represent her or
requested to reschedule the hearing. In addition, Complainant I told OCR that she provided the
Dean of Students with a list of several witnesses to be interviewed; however only a few of them
were contacted. Moreover, a few days before the judicial board hearing, at the request of the
Accused Student?s attorney, two of the Accused?s character witnesses were added to the hearing
list and the record was supplemented with reference letters. investigation found that
Complainant was not provided with the opportunity to provide character witnesses or reference
letters.

There is no dispute that, prior to the judicial board hearing, the Accused Student violated the no?
contact directive. As a result, the University developed a schedule for the Accused Student and
Complainant I. It is also undisputed that subsequent to the development of the schedule, the
Accused Student violated the agreement on two separate occasions. A ?show cause? hearing
was scheduled for the Accused on April 11, 2013 to determine if any additional action was
necessary in accordance with the Policy Statement Booklet. Complainant was not made aware
that this hearing was taking place and she was not a participant in the University?s proceedings
regarding the Accused Student?s violation of the restricted hours. As a result of the April 11,
2013 hearing, it was agreed that, except to attend class, the Accused Student would be restricted
to an area of campus close to his residence hall. Key Administrator 2 informed Complainant of
these restrictions after the hearing. The Dean of Students told OCR that the University did not
consider the Accused Student?s violations of the no contact order to be a form of sexual
harassment.

The hearing to address Complainant 1?s allegation of rape was held on April 12, 2013. The
Dean of Students explained that the Accused Student was permitted to have an attorney present

Page 18 Dr. Ronald Nowaczyk

at the hearing in accordance with the Code of Student Conduct, and that Complainant was also
permitted to have an attorney present. When asked how Complainant 1 would have been aware
that she had this opportunity, the Dean of Students stated that he told her that she could have a
support person present. However, the Complainant indicates that she was never noti?ed that her
support person could be an attorney. The evidence re?ects that Complainant was able to
secure a friend of the family who is an attorney to be her support person during the hearing.

Complainant told OCR that none of the Accused Student?s evidence was shared with her
before the hearing, which the Dean of Students denies. In addition, she told OCR that she was
not aware that she could bring physical evidence to the hearing, and was upset when she learned
that the Accused Student brought such evidence. As noted, while the Accused Student was
permitted to submit character witnesses, Complainant l?s request to submit similar witness
statements was denied

As a result of the hearing, the Accused Student was found responsible for Sexual Misconduct I,
Sexual Misconduct ii, and Endangering the Health and Safety of SelffOthers. On April 16,
2013, the University issued the following sanctions: suspension through the end of the Fall 2013
semester; requirement to reapply for readmission; designated as persona non grata on the
University?s campus throughout the duration of the suspension; and if readmitted, disciplinary
probation through graduation. The Disposition gave the parties five business days to appeal the
outcome, and directed the parties to the Code of Student Conduct for information regarding
appeals. Both parties filed appeals.

Pursuant to University policy, the Accused Student was permitted to remain on campus pending
the outcome of the appeal and the April 11, 2013 restrictions on his movement on campus
remained in place. After thejudicial board hearing, Complainant informed University of?cials
that the Accused Student again violated the no contact agreement. In response, the Dean of
Students informed the Accused Student in writing that he was required to leave campus
immediately due to reports from the University police indicating that he had violated the no
contact order. 

The Dean of Students held another ?show cause hearing? on April 22, 2013 by phone. There is
no transcript or written record of this hearing, and OCR con?rmed that Complainant 1 did not
attend the hearing. The Dean of Students told OCR that Complainant was asked to provide a
statement for the hearing. As a result of April 22, 2013 show cause hearing, the Accused Student
was charged with ?Refusing a Reasonable Request and Harassment,? and an administrative
hearing was scheduled to adjudicate these charges on May 14, 2013.

On April 26, 2013, Key Administrator i sent written notice to the Accused Student and
Complainant denying their appeals and notifying them that the outcome of the hearing on April
12, 20 3, took effect immediately.

As a result of the May 14, 2013 administrative hearing to adjudicate the charges of Refusing a
Reasonable Request and Harassment, the Accused Student pled responsible for Refusing a
Reasonable Request and agreed that he would not reapply or otherwise be readmitted to the
University following the one year suspension. OCR notes, however, that no disposition was
made with respect to the harassment charge. The University described the outcome as a
?permanent suspension from the University.? Complainant received notice of the
outcome of the administrative hearing via email from the Dean of Students, including that the

Page 19 Dr. Ronald Nowaczyk

Accused Student would no longer be eligible to return to the University. However, OCR notes
that the University did not provide Complainant a copy of the disposition of the hearing,
despite her request. OCR further notes that the University did not consider the hearing regarding
the Accused Student?s failure to abide by the no contact order to be a hearing governed by the
requirements ofTitle IX.

ANALYSIS of Complainant Incident:

Based on the investigation, OCR concludes that the University failed to respond and
equitably to Complainant 1?s report of sexual violence. Additionally, OCR concludes that
Complainant 1 was subjected to a sexually hostile environment, and continued to be subjected to
a hostile environment due to the University?s failure to provide adequate interim measures and to
take steps to stop the harassment and prevent its recurrence.

First, the University did not respond after two mandatory reporters had notice of the
incident. Although Key Administrator 1, another employee, and the campus police learned of
the incident on or about March 3, 2013, investigation found that the University did not
initiate any action until Complainant 1 herself reported the incident to the Dean of Students on
March 14, 2013. Although Key Administrator 1 told OCR he did not initiate any action
regarding the incident because Complainant 1?s father asked him to keep it in confidence, OCR
notes that while a complainant?s request for con?dentiality is a factor a recipient should
consider, a university must take action to address incidents upon receiving notice of them,
including but not limited to whether honoring a request for con?dentiality is appropriate under
the circumstances presented. investigation did conclude, however, that once Complainant
1 reported the incident to the Dean of Students, the University did move forward to
hold a hearing and address the subsequent appeal.

in addition, the University did not adequately provide Complainant with interim measures.
Although the Dean of Students put a no contact order in place, it was not effective in keeping the
Accused Student away from Complainant 1, as evidenced by the Accused Student?s multiple
violations of the no contact order. In addition, although Key Administrator 2 was assigned as
Complainant 1?s support person and information was provided to Complainant 1 about available
counseling services, the evidence did not show that the University provided her with guidance
regarding the full range of available interim measures. Further, OCR found that in some
instances, Complainant 1 arranged for interim measures, such as alternative coursework, on her
own.

The University?s investigation of the incident involving Complainant 1 was not adequate,
reliable or impartial. The University conducted only a cursory investigation that consisted of
speaking to several student witnesses and reviewing the police report prior to holding a hearing
regarding the incident. However, the University did not interview or invite all of the relevant
witnesses identified by Complainant 1 to the hearing, even though it considered the hearing to be
its investigation. in addition, both parties did not have equitable access to an attorney because
Complainant 1 was not informed that she could have counsel present until the day of the hearing.
Although Complainant 1 was able to ?nd an attorney to accompany her to the hearing, unlike the
Accused Student, she did not have the benefit of being represented by counsel throughout the
University?s process. Furthermore, Complainant 1 was not afforded the same opportunity to
provide character witnesses as the Accused Student. OCR also has concerns that Key
Administrator 2, who served as a victim?s advocate, also served as a member of the hearing

Page 20 Dr. Ronald Nowaczyk

panel, which may have posed a potential con?ict of interest at the time. investigation
was not able to resolve the factual dispute regarding whether Complainant was denied access
to the Accused Student?s evidence prior to the hearing. Despite its written policies, the
University employed the correct standard of proof (preponderance of the evidence), informed the
parties of the status of the investigation, and provided both parties with an equal opportunity to
appeal the outcome of the hearing.

The University provided the parties with written notice of the outcome of the hearing and appeal
pertaining to the incident. In addition, the evidence reflects that Complainant 1 received email
noti?cation of the outcome of the May 14, 2013 administrative hearing that addressed the
Accused Student?s failure to abide by the no contact order. However, the University erroneously
did not treat the Accused Student?s failure to abide by the no contact order as a violation of Title
IX, and as such, it did not provide Complainant 1 with all of the information regarding that
proceeding as required by Title iX, such as the hearing disposition form. The evidence also
re?ects that the University took actions that could have a chilling effect on students reporting
incidents of sexual assault. Speci?cally, Complainant 1 perceived the Dean of Students as
having suggested she could receive discipline for having engaged in underage drinking the night
of the offense and the Dean of Students con?rmed that he counseled Complainant 1 regarding
her consumption of alcohol on the evening of the incident.

Complainant 2 Incident

On May 20, 2014, just prior to her graduation from the University, Complainant 2 reported to the
Former Title IX Coordinator that a campus police of?cer sexually assaulted her in his police
vehicle during the fall 2009 semester.

investigation found that after meeting with Complainant 2, the Former Title IX
Coordinator immediately contacted the campus police, and the campus police turned the case
over to the county authorities. The Chief of University police and the Former Title IX
Coordinator told OCR that they informed Complainant 2 of available University and community
resources. Complainant 2 told OCR that the Former Title IX Coordinator did not provide her
with any information regarding her reporting options, but rather, only took her information and
then about 20 minutes later the Chief of University police called her and asked her to come in for
an interview with investigators from the county, which she did. Complainant 2 also told OCR
that she had received counseling from the University counseling center immediately following
the incident and that she received an email from Key Administrator 2 detailing outside resources
after she reported the incident to the Former Title IX Coordinator. The Chief of University
police told OCR that she kept in touch with Complainant 2 throughout the summer and provided
OCR with copies of text message exchanges between July and September 2014 in which she
checked-in on Complainant 2 and provided her with updates on her criminal case. The
University asserts that no additional remedial measures or accommodations were deemed
necessary for Complainant 2, as she graduated from the University and left the area shortly after
making her report. Complainant 2 con?rmed that she graduated the day after she made her
report and left campus shortly thereafter to begin a job in another jurisdiction.

The University suspended the police of?cer on May 23, 2014. As a result of the criminal
investigation, on May 29, 2014, the of?cer was criminally charged. On September 9, 2014, the
police of?cer pled guilty and the plea required that he, among other things, not have any contact

Page 21 Dr. Ronald Nowaczyk

with Complainant 2, resign from the campus police department, and provide information to the
county police as to similar activities known to him that occurred within the campus police.

In addition, the Chief of University police informed OCR that during the course of the criminal
investigation of the police of?cer, she received an anonymous letter regarding possible
misconduct by another University police of?cer (Of?cer 2). In addition, a witness who was
interviewed during the investigation of Complainant 2?s incident, provided information that
coincided with the allegation in the anonymous letter. The Chief of University police explained
that in response to the anonymous letter, she requested a law enforcement investigation of
Of?cer 2, and that the police explored the allegations but they were not able to substantiate the
allegations. The Former Title IX Coordinator told OCR that, while she received an
administrative internal summary of the investigation of the incident from the Maryland State
Police, she never reviewed the summary because it was sealed, and she had no reason to believe
that other of?cers engaged in misconduct, or that there were other student victims.

The Chief of University police and the Former Title IX Coordinator told OCR that the University
referred the matter to the police and did not conduct a separate Title IX investigation
independent of the police investigation. They also explained to OCR that investigations of
police conduct are conducted pursuant to the Law Enforcement Of?cers Bill of Rights, which, in
this instance, was conducted by the Maryland State Police Internal Affairs unit. While
Complainant 2 did not receive a copy of the summary of ?ndings from the Maryland State
Police, the Chiefof University police stated that Complainant 2 was advised of the plea bargain.

ANALYSIS of Complainant 2 Incident:

The University failed to conduct an adequate, reliable, and impartial investigation of the incident
invoiving Complainant 2, and failed to take steps to prevent the recurrence of harassment and
correct its discriminatory effects with respect to Complainant 2. Speci?cally, the evidence
reflects that the University failed to respond to Complainant 2?s report of sexual assault
by conducting a simultaneous Title IX investigation. In addition, because the campus police
of?cer committed the sexual assault in the context of carrying out his responsibilities as an
employee, the University was responsible for the discriminatory conduct and for remedying any
effects of the harassment on Complainant 2, as well as for ending the harassment and preventing
its recurrence. Moreover, the University erroneously determined that it did not have any
obligations to Complainant 2 under Title IX because she had graduated from the University soon
after making her report. Although the University provided some limited information regarding
counseling services, it determined that additional services were not necessary because
Complainant 2 graduated from the University the day after making her report, and thus,
Complainant 2 was not offered the full range of remedial services. Thus, OCR concludes that
Complainant 2 was subjected to a sexually hostile environment due to the University?s failure to
respond to her complaint.

Incidents Involving Other Students

OCR also reviewed documentation for all student complaints or reports of sexual harassment or
sexual violence from January 2010 through November 2014. In total there were forty-three
formal and informal complaints or reports made during that time period. As set forth below,
OCR identi?ed several general de?ciencies in the way in which the University processed
complaints of sexual harassment and assault from January 2010 through November 2014, which

Page 22 Dr. Ronald Nowaczyk

further support ?ndings that the University failed to provide for adequate, reliable, and
impartial investigations":

In one of the incidents, the University had not yet completed its investigation at the time it
provided responsive data to OCR. OCR notes, however, that the University never provided
subsequent documentation demonstrating that the incident had been fully investigated andfor
resolved.

In ?ve incidents, the University did not conduct an investigation under its Title IX policies and
procedures, but instead relied upon the local police or the campus police to conduct an
investigation. Additionally, the documentation provided by the University did not show that in
any of these ?ve incidents, University staff, including Dean of Students, the Former Title IX
Coordinator, or Key Administrator 2, were advised of the incident. In one of the incidents, the
University did not complete its investigation at the request of local law enforcement, who
requested that the University delay its investigative process in order to not compromise the
integrity of the criminal investigation. However, the documentation provided by the University
is insuf?cient to demonstrate that the University completed its investigation once the police
completed gathering evidence. As noted above, a recipient has an independent responsibility
under Title IX to investigate an incident of sexual harassment/sexual assault, apart from any
separate criminal investigation. Similarly, a recipient should not wait for the conclusion of a
criminal investigation or criminal proceeding to begin its own Title IX investigation. Although a
recipient may need to delay temporarily the fact-finding portion of a Title IX investigation while
the police are gathering evidence, it should not permanently cease all investigatory activities.

In nine of the incidents, the University did not proceed with an investigation at the victim?s
request. A school should weigh and consider requests for con?dentiality carefully, while at the
same time it must consider its responsibility to provide a safe and nondiscriminatory
environment for all students, including the student who reported the sexual violence. This
requires a balanced, deliberative approach to each individual request from a victim. However,
the documentation provided by the University does not demonstrate that the University engaged
in a deliberative determination regarding whether, in each instance, it could honor the victim?s
request not to proceed, and whether that decision was balanced against the need to keep the
community safe.

In six of the incidents, the University did not proceed with an investigation because the incident
occurred off campus or involved a non-student victim or perpetrator. Thus, in these six
incidents, the University did not make a determination regarding whether the conduct occurred in
the context of an education program or activity, or had continuing effects on campus, or in an
off-campus education program or activity.

In one of the incidents, the University did not conduct an investigation in accordance with its
policy and procedures, and instead resolved the complaint informally, even though there were at
least two additional complaints filed against the same alleged perpetrator. Because the
University did not conduct a formal investigation, it never determined whether the victim or
other students experienced a hostile environment, and thus, did not provide appropriate remedies.

 

4 In separate correspondence to the University, OCR provided speci?c case numbers for each issue area referenced
below.

Page 23 Dr. Ronald Nowaczyk

In addition, there were twenty-four cases in which the documentation did not support that the
victim was advised of the available on campus and otf campus resources, including counseling.

OCR found that the University conducted an investigation under its Title IX policies and
procedures in thirteen of the forty-three incidents. Of those thirteen investigations, in two of the
cases identi?ed by OCR, the documentation did not support that the victim was provided with
interim measures, and, as noted above, in many cases the documentation did not support that the
victim was advised of the available on campus and off campus resources, including counseling.
Title IX requires a school to take steps to ensure equal access to its education programs and
activities, and to protect the victim, as necessary, including taking interim measures before the
?nal outcome of the investigation and to take steps to end the harassment and correct its effects,
once a ?nal determination is reached. Imposing sanctions against the perpetrator, without more,
likely will not eliminate the hostile environment, prevent its recurrence, and effectively remedy
its effects.

In addition to the thirteen incidents which were investigated by the University, there was one
case in which the documentation showed that the accused student was advised of his right to
have witnesses at the hearing, while the victim was not, and there were nine cases in which the
documentation did not support that the parties were allowed to provide evidence and witnesses.
As noted above, a school?s grievance procedures should provide for the adequate, reliable and
impartial investigation of complaints in which both parties are provided an equal opportunity to
present witnesses and evidence. While a school has flexibility in how it structures the
investigative process, for Title IX purposes, a school must give both the complainant and the
alleged perpetrator any rights that it gives to one of them. A'b?i??C?d and fair process that
provides the same opportunities to both parties will lead to sound and supportable decisions.

Similarly, while schools are required to provide a prompt and equitable response to all Title IX
complaints, in one of the thirteen incidents which were investigated by the University, the
University did not provide a prompt and equitable response, as the complaint was not resolved
for nearly 10 months. Last, in eight of the thirteen incidents which were investigated by the
University, the documentation is not suf?cient to demonstrate that the victims were noti?ed of
the outcome ofthe investigation in writing, as required by Title IX.

Moreover, OCR has further concerns because in one of the incidents, the alleged perpetrator
withdrew prior to the matter being addressed by a panel hearing and a judicial hold was placed
on his student account, meaning that the alleged perpetrator could not be readmitted to the
University until alter the hearing was held. This is in direct contravention with the University?s
grievance procedures, which state: ?Withdrawai?pm the University after a violation report has
been ?ied does not excuse the student ?om the hearing. Students who fail to appear after proper
notice may be deemed to have pieaded responsible to the charges pending against them.?

As set forth above, OCR also notes signi?cant concerns regarding the University?s record-
keeping practices. Speci?cally, OCR requested that the University provide a copy of all
investigative reports, ?ndings or other documents that describe the outcome and resolution,
including a description of all the remedies and sanctions resulting from the decision. In twenty
three cases, the investigative ?le provided by the University was incomplete and missing speci?c
documentation referred to in the cover sheet that the University developed to respond to 
request for information regarding each incident. In addition, it is unclear from the data whether
the information was monitored by anyone at the University. In fact, the evidence reflects that the

Page 24 Dr. Ronald Nowaczyk

Former Title IX Coordinator was only advised of ?ve of the incidents. While the University
asserts that the Former Title IX Coordinator was advised of an additional two incidents, it did not
provide any documentation substantiating this assertion. A Title IX coordinator?s core
responsibilities should include overseeing the school?s response to Title IX reports and
complaints, and identifying and addressing any systemic problems.

These issues are addressed in the Resolution Agreement which requires the University to
reassess the comparative cases where OCR identi?ed de?ciencies, using its revised policies and
procedures once they are approved by OCR, and to make improvements in its record keeping
practices.

CONCLUSION

OCR determined that the University?s policies and procedures and its Notice of Non-
Discrimination are not compliant with the regulation implementing Title IX, at 34 CPR. 
106.8 and 106.9. In addition, OCR determined that the University failed to provide prompt and
equitable responses to complaints of sexual violence of which it had notice, including the
complaints/reports made by Complainant 1, Complainant 2, and other students, in violation of
the regulation implementing Title IX, at 34 CPR. 106.31. OCR also determined that the
University?s failure to provide an equitable response to complaints of sexual harassmentrviolence
allowed Complainant 1, Complainant 2, and possibly other students to be subjected to a sexually
hostile environment that denied or limited the students? ability to participate in or bene?t from
the school?s program, in violation of 34 CPR. 106.31.

RESOLUTION

On September 6, 2016, the University provided OCR with the enclosed signed Resolution
Agreement, which addresses the compliance concerns identified in investigation and,
when fully implemented, will resolve the University?s noncompliance with Title IX.

In accordance with the Agreement, the University agrees to:

0 Publish an anti-harassment statement, revise its Title IX grievance procedures, and ensure
that the responsibilities of the Title IX Coordinator and any Deputy Coordinators are
consistent with Title IX.

i Provide training to ensure that all members of the University community including
students, faculty, administrators, and other staff are trained regularly on issues related
to sexual harassment and on the requirements of Title IX.

I Reinvestigate andfor investigate the comparative incidents in which OCR determined that
the University failed to conduct an adequate investigation, provide written notice of
remedial services for the comparative incidents in which OCR determined that the
University failed to provide such services, and provide written notice of the outcome of
the complaint for the comparative incidents in which OCR determined that the University
failed to provide such notice. -

a Review the complaints and reports of sexual harassment andfor sexual assault made from
January I, 2010, through the date of the Agreement, to determine whether the University
investigated each complaint or report and equitably.

Enhance its outreach to and feedback from students, including by conducting an annual
climate check or series of climate checks with students on campus to assess the

Page 25 Dr. Ronald Nowaczyk

effectiveness of steps taken by the University towards providing a campus free of sexual
misconduct. In addition, the University will convene a committee, composed of staff and
students, to develop a plan for educating students and employees about sexual harassment
and assault.

Provide OCR with case ?les and other information concerning all incidents of alleged
sexual harassment or sexual assault at the University for the next two academic years.

I Reimburse Complainant and Complainant 2 for expenses for
counselingfacademicftherapy services for the assessment andfor treatment of lingering
effects of the incidents that are the subject of this complaint.

OCR will monitor implementation of the Agreement. If the University fails to implement the
Agreement, OCR may initiate administrative enforcement or judicial proceedings to enforce the
speci?c terms and obligations of the Agreement. Before initiating administrative enforcement
(34 C.F.R. 100.9, 100.10), or judicial proceedings to enforce the Agreement, OCR shall give
the University written notice of the alleged breach and a minimum of sixty (60) calendar days to
cure the alleged breach.

This concludes 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 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. 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 ?nds a violation.

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 complainant may ?le another complaint alleging such treatment.

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 want to thank the University, including University counsel and the Current Title IX
Coordinator, for their cooperation during the investigation.

Page 26 Dr. Ronald Nowaozyk

Should you have any questions, please contact Amy Niedzalkoski, Team Attorney at 215-656-
8571 or Amy.Niedzalkoski@ed.gov, or myself at 215?656-6935 or Beth?ellman-Beer?edpov.

Enclosure

Co: Karen Treber, University Counsel
Emily Caputo, Title IX Coordinator

Sincerely,

Beth Gellman-Beer
Supervisory Attorney
OCR Philadelphia

UNITED STATES DEPARTMENT OF EDUCATION REGION 

DELAWARF
OFFICE FOR CIVIL RIGHTS 
THE WANAMAKER BUILDING, SUITE 515 MARYLAND
100 PENN SQUARE EAST 
PHILADELPHIA. PA. 19107?3323 

 

September 9, 2016
IN RESPONSE, PLEASE REFER TO: 03132328 03152032

Ms. Amber Haning
700 1/2 Chaney Drive, Apt. 5
Takoma Park, MD 20912

Dear Ms. Haning:

This letter is to inform you that the US. Department of Education (the Department), O?ice for
Civil Rights (OCR), has completed its investigation of the above-referenced complaints ?led
against Frostburg State University (University). Throughout this letter you will be referred to as
"Complainant OCR investigated whether the University failed to and equitably
respond to complaints, reports, andfor incidents of sexual harassment and sexual violence of
which it had notice, including Complainant 1?s and Complainant 2?s report of sexual assault, and
whether as a result, students, including Complainant and Complainant 2. were subjected to a
sexually hostile environment.

OCR investigated this case under the authority ofTitle 1X of?the Education Amendments of1972
(Title IX). Title 1X and its implementing regulations, 34 C.F.R. ?106, prohibit discrimination on
the basis of sex in education programs and activities operated by recipients of Federal ?nancial
assistance from the Department. The University receives such Federal funds and. therefore, is a
recipient subject to the requirements of Title IX.

In her July 29. 2013 complaint filed with OCR, Complainant alleged that the University failed
to provide a prompt and equitable reSponse to a report in March 2013 that the Accused Student
allegedly raped her at an ot?ticampus party in February 20l3. During investigation of
Complainant 1?s complaint, on December 2. 2014, OCR received a complaint from Complainant
2 (Case Complainant 2 alleged that the University did not provide a prompt and
equitable response to her May 2014 University complaint that she was sexually assaulted by a
campus police officer during the Fall 2009 semester. OCR consolidated the investigation of
Complainant 2?s complaint with the existing investigation ol? Complainant 1?s complaint.

During the investigation. OCR reviewed documentation provided by Complainant 1,
Complainant 2. and the University, including relevant University policies and procedures, case
files related to reports of sexual harassment and sexual assault from January 2010 through
November 2014; conducted an on-site visit to the University in April 2014; and interviewed
Complainant in January and July 2014, Complainant 2 in January 2015, and University
students and University staffin 20l4 and 20l5.

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Page 2 Ms. Amber Haning
SUMMARY OF FINDINGS

OCR found that the University failed to respond and equitably to Complainant l?s
report of sexual violence. and failed to take steps to prevent the recurrence of harassment and
correct its discriminatory effects on Complainant 1. With regard to Complainant 2. OCR also
found that the University failed to conduct an adequate, reliable, and impartial investigation of
Complainant 2?s report of sexual assault, and failed to take steps to prevent the recurrence of
harassment and correct its discriminatory effects. OCR also found that the University?s handling
of the majority of other sexual harassment and sexual assault complaints brought by other
students from January 2010 through November 2014 were not prompt andz?or equitable, as
required by Title IX.

OCR found that the University's policies and procedures and Notice of Non-Discrimination that
were in effect at the time of Complainant 1?s and Complainant 2?s report of sexual assault were
not compliant with Title IX. When OCR opened this investigation in 2013, the University had
five (5) policies to address complaints of sexual harassment and sexual violence. 
investigation found that none of these policies met Title lX?s procedural requirements. In 2016,
the University consolidated all of its previous policies into a single policy that addresses all
complaints of sexual harassment and sexual violence that are brought by or against students,
employees, and third parties. OCR's investigation found that, while the 2016 Title IX policy and
procedure made strides towards compliance with Title lX?s procedural requirements, several
compliance concerns remain.

More speci?cally, OCR found violations in the areas of the University?s Notice of Non-
Discrimination; former and revised grievance procedures; Title IX Coordinator?s duties,
responsibilities, and training; record keeping practices, and handling of Complainant 1?s and
Complainant 2?s sexual violence complaints, as well as the majority of Title IX complaints
reported to the University between January 2010 and November 2014. In addition, OCR's
investigation identi?ed concerns regarding the University?s handling of criminal complaints:
training provided to the campus community; student climate information; and campus climate
assessment and response. OCR also notes that although our investigation identi?ed concerns
regarding the University?s designation ofreSponsible employees and complainant confidentiality,
those concerns were remedied by the 2016 Title IX policies and procedures.

On September 6, 2016, the University voluntarily entered into a resolution agreement
(Agreement), which requires that the University take specific steps to address the identified
violations.

This letter summarizes the applicable legal standards, the evidence gathered during the
investigation, determinations and the remedies the University has agreed to implement to
resolve its non-compliance with Title IX.

LEGAL STANDARDS

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

Page 2 Ms. Amber Haning

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 of
Non-Discrimination must also state that questions regarding Title may be referred to the
recipient?s Title IX coordinator or to OCR.

The Title IX implementing regulation, at 34 C.F.R. 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 CPR. to notify all students and employees of the name (or title),
of?ce address, and telephone number of the designated employee(s).

The Title regulation at 34 C.F.R. 106.31 provides generally that, except as provided
elsewhere in the regulation, no person shall on the basis ofsex be excluded from participation in,
be denied the bene?ts of, or be subjected to discrimination in education programs or activities
operated by recipients of Federal ?nancial 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 ofa 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
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 ifthe
conduct occurred, whether a hostile environment existed for the complainantts) 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 ifa responsible employee actually knew or,
in the exercise of reasonable care, should have known about the harassment. Ifa 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

Page 2 Ms. Amber Haning

failure to respond 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.

A recipient is responsible under the Title IX regulations for the nondiscriminatory provision of
aid, bene?ts, 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 bene?t 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 ofthe harassment.

The Title IX regulation, at 34 CPR. 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 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 and the accused a prompt and equitable resolution.

BACKGROUND

The University is a public university that is part of the University System of Maryland (USM).
The USM is comprised of 12 postsecondary institutions, including the University. Although the
Board of Regents? duties include, among other things, formulating policies that govern the
member institutions, the University is responsible for adopting and implementing its own
policies and procedures.

When OCR initiated this investigation in academic year 208-2014, the University had 4.703
undergraduate students, of whom 2,303 were female and 2,400 were male, and 770
graduate students. of whom 466 were female and 304 were male. During the 2015-
16 academic year, the University had 4,961 undergraduate students, of whom 2,544 were
female and 14]? were male, and 786 graduate students, of whom 450 were female
and 336 were male.

Pursuant to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics
Act, 20 U.S.C. [092 (Clery Act), for the past four reporting years (2011. 2012. 2013, 2014),
the University reported a total of IS sex offenses.

As of the date of the agreement in this matter, the University has not reported crime data for
20l5.

Page 2 Ms. Amber Haning
FACTS AND ANALYSIS
1. Notice of Non-Discrimination

The University?s Notice of Non-Discrimination was published during the 2013-14. 2014-15, and
the 2015-16 school years on the University?s Diversity and Equal Opportunity webpage. The
Notice of Non-Discrimination does not state that "sex? is a protected basis or that inquiries
concerning the application of Title IX may be referred to the Title IX Coordinator or to OCR. In
addition. the Notice of NoniDiscrimination is not published in each announcement, bulletin.
catalog or application form which is used in connection with the recruitment of students or
employees, or unions or professional organizations holding collective bargaining or professional
agreements with the University. In the few publications in which the Notice of Non-
Discrimination is referenced. the publication refers to the Policy on Non-DiscriminationtEqual
Opportunity and states where it may be located.

OCR therefore concludes that the University?s Notice of Non-Discrimination does not comply
with the requirements of Title IX.

2. Grievance Procedures

investigation found that at the time the incidents involving Complainant and
Complainant 2 were reported. the University had five (5) policies and procedures that addressed
sexual harassment and sexual violence:

University System of Maryland Policy and Procedures on Sexual Assault (USM Sexual
Assault Policy);

Frostburg's Procedures for Implementing the 019M Polity (University is Sexual Assault
Procedures);

(3) Sexual Harassment Pol icy;

(4) FSU Procedures for Pursuing Complaints of Discrimination and Sexual Harassment
(Discrimination and Sexual Harassment Procedures); and

(5) Code oyf?Student Conduct.

The USM Sexual Assault Policy was an interim policy and in June 2014. the USM Board of
Regents approved the Policy on Sexual Misconduct for the University System of Maryland
[Revised USM Sexual Misconduct Policy). The Revised USM Sexual Misconduct Policy
superseded the 019M Sexual Assault Policy. Collectively these policies and procedures (including
the Revised USM policy) will be referred to herein as the ?former Title IX policies and
procedures."

In January 2016. the University adopted the Gender-Based Harassment and Violence Policy
(20M Harassment and Violence Policy) and the Procedures for investigating and Resolving
Reports of Prohibited Conduct Under the University 's Gender-Based Harassment and Violence
Policy (20M Harassment and Violence Procedures) (collectively referred to as the 20M

Page 2 Ms. Amber Haning

Harassment and Violence Policy and Procedures). The Mid Harassment and Violence Policy
and Procedures replaced all ofthe University?s previous Title IX policies and procedures.

investigation found that the University?s former Title IX policies and procedures did not
satisfy the University?s obligation to provide for the prompt and equitable resolution of
complaints of sexual harassment, including sexual violence. In particular, the fonner Title IX
policies and procedures were at times confusing and contradictory to complainants, accused
students. members ofthe University community. and third parties. Although the University has
made progress in correcting the deficiencies in the University?s former Title IX policies and
procedures through the adoption of the Harassment and Violence Policy and Procedures in
January 2016, OCR concludes that the revised policy and procedures are not fully compliant
with the requirements of Title IX.

Former Title IX Policies and Procedures1

013M Sexual Assault Policy, Revised USM Sexual Assault Policy, and the University ?s
Sexual Assault Procedures

The USM Sexual Assault Policy and the Revised Sexual Assault Policy (collectively USM Sexual
Assault Policies) were issued by the USM as a directive and guidance to all USM institutions,
including the University, about the required contents oftheir sexual assault policies.2

The USM Sexual Assault Procedures set forth information required by the ESM Sexual Assault
Policies and were specific to the University. While they were published and readily available to
the University community, the USM Sexual Assault Procedures did not provide adequate notice
to students and employees of the procedures and did not provide for an adequate, reliable, and
impartial investigation, including an equal opportunity to present witnesses and relevant
evidence. Specifically, the USM Sexual Assault Procedures:

0 Provided multiple. and at times conflicting, options for who may initiate a complaint of
sexual assault and to whom it should be made. In one instance. it referred complainants
to the Director of Public Safety, and at another point it identi?ed the University Code of
Conduct System reporting system without providing any contact information or details
about the process. It also referred complainants to the University Judicial Administrator
in the Office for Student and Educational Services (.583).

I Directed victims who wished to file a complaint against an employee to ?le a complaint
with ?the vice president of the division in which the accused is employed,? but no contact
information or procedures were provided. OCR further notes that the Former Title IX
Coordinator and the Dean of Students disputed the University policies and procedures,
stating that complaints against employees were to be ?led with the Title IX Coordinator.

 

All of the University's former Title IX policies and procedures, except the Discrimination and Sexual Harassment
Procedures, were published in the University?s Policy Statements Booklet, which is an annual University publication
available on the University?s website provided to students, faculty, and staff by the Division of Student Affairs that
contains policies regarding substance abuse, safety, and standards ofconduct for students, faculty. and staff. The
Discrimination and Sexual Harassment Procedures were published on the Office of Human Resource?s webpage
and the Of?ce and Title IX Compliance?s webpage.

3 The University included the Sexual Assault Policies in the University?s Policy Statement Booklet which was
distributed to its students, employees. and third parties.

Page 2 Ms. Amber Haning

- Failed to provide a process for an adequate, reliable, and impartial investigation.
including an equal opportunity to present witnesses and relevant evidence. Although the
Sexual Assault Procedures stated hearings for sexual assault would be conducted through
the hearing procedures established in the Code of Student Conduct, investigation
concluded the Code of Student Conduct also did not provide For an adequate, reliable. and
impartial investigation as required by Title IX.

0 Noted that inquiries concerning Title IX may be referred to OCR but did not provide
contact information.

0 Did not provide for the following: designated and reasonably prompt timeframes for
major stages of the grievance process, as well as the process for extending timeframes;
written notice to the parties of the outcome of the complaint; an assurance that the
institution will take steps to prevent recurrence of harassment and correct its
discriminatory effects on the complainant and others, if appropriate; interim measures; a
statement that the standard of review is the preponderance of the evidence; a prohibition
against retaliatory harassment; an adequate de?nition of sexual harassment; or the right to
proceed with a criminal investigation and a Title IX complaint simultaneously.

OCR therefore concludes that the University?s USM Sexual Assault Policies and the Sexual
Assault Policies Procedures did not comply with the requirements of Title IX.

Sexual Harassment Policy

The Sexual Harassment Policy provided minimal guidance regarding resources available to a
victim of sexual harassment, such as how and where to ?le a complaint or how such a complaint
would be investigated. Although the Sexual Harassment Policy de?ned sexual harassment and
provided numerous examples of conduct that could rise to the level of sexual harassment. neither
the definition nor the examples mentioned sexual violence or sexual assault as a form of sexual
harassment. In addition, the Sexual Harassment Policy did not state whether it applied to
students. employees, andlor third parties. In addition, the Sexual Harassment Policy did not
provide adequate notice to students and employees of the procedures, including where
complaints may be ?led, that was easily understood.

OCR also determined that the Sexual Harassment Policy did not provide for an adequate.
reliable, and impartial investigation, including an equal opportunity to present witnesses and
relevant evidence. While the Sexual Harassment Policy stated that the rights of both the
offender and the offended would be protected, including protection from retaliation, it directed
the reader to the Discrimination and Sexual Harassment Procedures, which as set forth more
fully below. did not provide for an adequate, reliable, and impartial investigation. Additionally,
the Sexual Harassment Policy inappropriately stated that ?in assessing whether a particular act
constitutes sexual harassment forbidden under this policy, the rules of common sense and reason
shall prevail. The standard shall be the perspective of a reasonable person within the campus
community." This standard falls short of the preponderance of the evidence standard required to
satisfy Title IX.

In addition. the Sexual Harassment Policy did not provide for the following: designated and
reasonably prompt timeframes for major stages of the grievance process, as well as the process
for extending timeframes; written notice to the parties of the outcome of the complaint; an
assurance that the institution will take steps to prevent recurrence of harassment and correct its

Page 2 Ms. Amber Haning

discriminatory effects on the complainant and others. if appropriate; interim measures; a
prohibition against retaliatory harassment; or the right to proceed with a criminal investigation
and a Title IX complaint simultaneously.

OCR therefore concludes that the University?s Sexqu Harassment Policy did not comply with
the requirements of Title IX.

. . . . 3
Discrimination and Sexuai Harassment Procedures

The University's Discrimination and .S?exuai Harassment Procedures are grievance procedures
for ?ling complaints of discrimination based on race. color. creed. religion, national origin, sex.
age. disability. veteran status. and sexual orientation. While the Discrimination and Sexualr
Harassment Procedures adequately provided for written notice to the parties of the outcome of
the complaint and prohibited retaliation. they did not provide for: adequate notice to students and
employees of the procedures. including where complaints may be ?led. that was easily
understood; the application of the procedures to complaints alleging discrimination or
harassment carried out by employees. other students. and third parties; an adequate. reliable. and
impartial investigation. including an equal opportunity to present witnesses and other relevant
evidence; timeframes for all major stages of the grievance process. andior a process for
extending timelines. Specifically. the Discrimination and Sexual Harassment Procedures:

0 Did not provide that the parties had an equal opportunity to provide evidence and
witnesses during the investigation.

I Did not provide any timeline with respect to the informal complaint process. and with
reSpect to formal complaints. the procedures did not provide a timeframe. but instead
stated that the Title IX Coordinator would conclude the investigation of the facts as
as possible.

0 Required complaints to be filed within 60 calendar days of the complainant having
reasonable knowledge of the act and complaints against a faculty member were directed
to be brought within 60 calendar days after the last day of the semester in which the
incident occurred.

0 Stated that the Title IX Coordinator would make the determination as to whether an
investigation of the dispute would be undertaken or if the matter would proceed to a
hearing, but did not state how this determination would be made.

0 Did not de?ne University community member and it was unclear who could make a
complaint of discrimination or sexual harassment pursuant to these procedures. We note.
however. that the Former Title IX Coordinator explained that ?member of the University
community.? as stated in the procedures. could include a third party. such as a vendor.

- Stated that complainants could file with OCR and other agencies. but did not provide
contact information for OCR or any other agency.

- included an informal process that did not state that the informal process was voluntary
and that mediation may not be used in a complaint of sexual assault or sexual violence.
In addition. the Former Title IX Coordinator stated that mediation was an available
option for cases alleging sexual assault.

 

1 While the University?s Sexual? .-tssauit Procedures were clearly intended to set forth the information required by
the Sexuai .rlssauit Poiicies, several key administrators insisted that the Discrimination and Sexuai Harassment
Procedures were developed by the University to meet the requirements set forth in the USM Sexual Assault
Policies.

Page 2 Ms. Amber Haning

0 Did not provide the following: an assurance that the University would take steps to
prevent the recurrence of harassment and correct its discriminatory effects on the
complainant and others, if appropriate; interim measures; or a statement that the
preponderance of the evidence was the appropriate evidentiary standard to be utilized.

0 Prohibited retaliation, but did not contain policies and procedures to protect against
retaliatory harassment.

I- Did not specify that sexual violence is a form ofsexual harassment.

OCR therefore concludes that the University?s Discrimination and Sexnni Harassment
Procedures did not comply with the requirements of Title IX.

Code ofStna'eni Conduct

The Code ofSindenr Conduct set forth conduct that was prohibited by the University and subject
to student conduct proceedings, including sexual harassment and sexual offenses labeled as
?sexual misconduct l? and "sexual misconduct 

The Code of'Sindeni Conduct appropriately identi?ed the preponderance of the evidence as the
evidentiary standard of review for the hearing. In addition, it provided to both parties an equal
opportunity to present witnesses and other evidence at the hearing and access to information used
at the hearing; the opportunity to hear, question, and challenge adverse testimony or witnesses
through the hearing panel; advisors to provide support at the hearing; and the right to appeal the
hearing determination. However, it did not provide adequate notice to students and employees of
the procedures, including where complaints may be ?led; an adequate, reliable, and impartial
investigation, including an equal opportunity to present witnesses and other evidence during the
investigation of the complaint; designated and reasonably prompt timeframes for all major stages
of the grievance process or a process for extending timeframes; adequate written notice to the
parties of the outcome of the complaint; interim measures for the victim; an assurance that the
University would take steps to prevent recurrence of harassment and to correct its discriminatory
effects on the complainant and others, if appropriate; policies and procedures to protect against
retaliatory harassment: or notice to the complainant of the right to proceed with a criminal
investigation and a Title IX investigation simultaneously. Speci?cally, the Code ofSiudenr
Conduct:

- Defined sexual harassment, but the definition did not include sexual assault or sexual
violence.

1- Stated that any faculty, staff, or student may refer to a University Code Administrator 3
student or student organization suspected of violating the Code of Student Conduct, but it
did not provide direction regarding the identity or contact information of the University
Code Administratods) or the process for making such a referral. In addition, 
investigation found that there was contradictory evidence regarding whether all
complaints against students must be ?led under the Code Conduct procedures.
Specifically, the Former Title IX Coordinator told OCR that ifa complaint alleged sexual
harassment or assault by a student against an employee, the Discrimination and
Harassment? Procedures would apply. That distinction, however, was not evident from
the Code ofSiua'eni Conduct.

0 Did not provide that third parties may bring a complaint against a student by invoking the
Code qurudenr Conduct.

Page 2 Ms. Amber Haning

I Permitted an accused student to have an attorney present at the hearing if criminal
charges were also likely, but the complainant was not similarly entitled to have an
attorney present.

0 Provided that, during the sanctioning phase, the referred student may present character
references or statements to testify on his or her behalf. but the complainant was not
provided an equal opportunity for character witnesses.

1- Raised a concern regarding the impartiality under the Code of'Sruo'enr Conduct because
Key Administrator 2, who served as an advocate for victims to help guide them through
the Code of??radear Conduct process, also served as a hearing panel member.

Contained general timeframes, including that referrals should be made in a ?timely
manner," witness statements will be provided to the parties ?in a reasonable time prior to
the hearing to allow both parties to review and challenge them," and a written decision
shall be sent to the referred student ?within a reasonable period of time."

0 Provided that a written decision would be sent to the referred student at hisfher address or
by email within a reasonable period oftime, but it did not provide that the complainant
would also receive a copy ofthe outcome in writing. Moreover, if a victim ofa crime of
violence or non-forcible sex offense wished to receive the results of any disciplinary
hearing conducted by the University against a student who was the alleged perpetrator of
the crime or offense, he or she was required to submit a request in writing. In addition.
although the Code of Student Conduct permitted appeals, it did not provide for written
notice to the parties of the outcome ofthe appeal.

II Included the option for mediation but did not state that mediation is not appropriate for
cases of sexual assault.

OCR also has concerns that the Dean of Students informed OCR that the University conducted
only a limited investigation to determine if there was enough information to indicate that there
was a likelihood that a violation of policy occurred, and that the subsequent judicial panel
hearing constituted the University?s investigation.

OCR therefore concludes that the University?s Code of'Student Conduct did not comply with the
requirements of Title IX.

Title IX Website and 2016 Revisions to Title IX Policies and Procedures

The University currently has a Title IX webpage that serves as a comprehensive Title IX
resource. The webpage identifies the University?s Title IX and University Compliance
Coordinator (Current Title IX Coordinator) and the Deputy Title IX Coordinator and provides
the telephone number and email address for each. We note that Key Administrator 2 is now
designated as a Deputy Title IX Coordinator. The webpage contains links entitled ?reporting
options." ?sources of support," "definitions," ?reporting form,? and "policies and procedures.?

The reporting options page provides a comprehensive list of the different ways a victim may
report sexual harassment or sexual violence. as well as contact information for the University
individuals and of?ces who may provide assistance in doing so. The sources of support page
provides detailed information regarding various on and off campus resources available to provide
assistance to victims. with accompanying contact information and a short description of each
resource. The definitions page includes a de?nition for confidential employee, gender based
violence, relationship violence, sexual exploitation, sexual harassment, sexual intimidation,

Page 2 Ms. Amber Haning

sexual misconduct, sexual violence, retaliation, stalking, interim measures, and responsible
employee. OCR notes that the Title IX webpage states that all employees. except those of the
health center and counseling center, are responsible employees obligated to report incidents of
prohibited conduct. The reporting form page is an online reporting form, and the cover page also
provides instructions for anonymous reporting. The form also states that all reports are directed
to the Title IX Coordinator and provides her name and contact information, along with the
contact information for on and off campus resources. The form allows the individual to
designate the speci?c type of misconduct that took place, the location of the misconduct. the
complainant?s identi?cation, the respondent?s identi?cation and the details of the incident.
Lastly, the policies and procedures page includes a link to the 2W6 Harassment and Violence
Pol ler? and Procedures.

20! 6 Harassment and Violence Policy and Procedures

OCR concluded that 20l 6 Harassment and Violence Policies and Procedures are compliant with
Title IX in a number of areas. The following summary describes the provisions ofthe 20l6
Harassment and Violence Policies and Procedures that are not compliant:

Although the 2016 Harassment and Violence Policy and Procedures provide for timeframes for
many of the major stages of the grievance process. it does not provide timeframes for all of the
major stages. Specifically, timeframes are not provided for when the Title IX Coordinator or
designee will issue a Notice of Investigation to the parties, for when the University will
determine appropriate sanctions when the respondent is an employee, or a timeframe for when
the Title IX Coordinator or designee will issue a Notice of Investigative Finding to the parties.

The 2016 Harassment and Violence Policy and Procedures provide that each party will receive
written notice of the outcome of a voluntary resolution, the final investigative report, and the
appeal. However, the policy does not explicitly state that written notice will be provided to the
complainant when the Title IX Coordinator determines that no further action should be taken
after the initial review.

OCR therefore concludes that the University?s 2016 Harassment and Violence Policy and
Procedures do not comply with the requirements of Title IX.

3. Responsible Employees

The former Title IX policies and procedures were largely silent with respect to the responsibility
of employees to report sexual harassment or sexual assault. Only the Sexual Harassment Policy
addressed responsible employees, stating that "members of the University community with
personal knowledge of incidents of harassment are encouraged, and University employees are
required, to report such knowledge to the Title IX Coordinator."

By contrast, the current Title IX website and the 20M Harassment and Violence Policy and
Procedures inform the campus community of which employees are considered responsible
employees and which are considered confidential employees, and define each of those terms.
Speci?cally, it states that responsible employees who learn of or witness prohibited conduct are
required to report it to the Title IX Coordinator, and except for con?dential employees, all
University employees have been designated as responsible employees by the University.

Page 2 Ms. Amber Haning

Con?dential employees are de?ned as employees who are not required to report incidents, and
are limited to employees ofthe health and counseling centers. In addition, the 20M Harassment
and Violence Policy and Procedures advises that the University police can assist individuals in
making a report to law enforcement and explains that reporting an incident to the University
police will trigger the University police?s obligation as responsible employees to report the
conduct to the University as well.

has concerns that the previous Title IX policies and procedures did not adequately
designate and categorize University employees as either responsible employees or con?dential
resources. OCR notes, however, that the University?s current Title IX policies and procedures
do include appropriate designations and categories.

4. Con?dentiality

Prior to 20] 6, con?dentiality was addressed only in the Discrimination and Sexual Harassment
Procedures, which provided that ?confidentiality will be maintained to the extent permitted by
law. except insofar as information needs to be disclosed so that the University may effectively
investigate the matter and take corrective action.? The policy did not speci?cally address
factors such as when a request for con?dentiality would be honored, the conditions under which
such a request would not be honored, or the individual(s) responsible for deciding whether a
complainant?s request for con?dentiality would be honored. In addition, the former Title IX
policies and procedures did not address how student requests to not pursue campus judicial
action would be addressed.

The 2016 Harassment and Violence Policies and Procedures provide de?nitions for privacy and
con?dentiality. explain the differences between each, and state that when a complainant requests
that their name or other identifiable information not be shared or that no formal action be taken,
the Title IX Coordinator, in consultation with the Title IX team, will balance this request with the
University's obligation to provide a safe and non-discriminatory environment to the victim and
the rest of the community. If the University is unable to honor the request, the Title IX
Coordinator will inform the victim prior to starting a formal investigation.

OCR's has concerns that the previous Title IX policies and procedures did not adequately
address the University?s obligations when a victim requests con?dentiality and/or elects not to
proceed with a complaint. OCR notes, however, that the Universityls current Title IX policies
and procedures appropriately address the University?s obligations regarding con?dentiality.

5. Title IX Coordinator

The Former Title IX Coordinator was also the University?s Director of the Americans with
Disabilities ActiEquaI Employment Opportunity According to the Former Title IX
Coordinator, her Title IX Coordinator duties included overseeing all Title IX policies and
procedures, working with the athletic department to ensure equity, working with SES on its
grievance procedures, keeping abreast of Title IX complaints that were ?led, as well as their
conclusions and outcomes, and investigating Title IX complaints that were made by or against
faculty or staff.

Page 2 Ms. Amber Haning

The Former Title IX Coordinator did not oversee all of the University?s efforts to comply with
and carry out its Title IX responsibilities and programs. Although the Former Title IX
Coordinator was noti?ed of some of the incidents brought against employees and students, the
evidence showed that the Dean of Students bore the primary responsibility for the handling of
such complaints, with little to no oversight by the Former Title IX Coordinator. Key
Administrator 2 also held signi?cant Title IX responsibilities, including serving as a case
manager for student victims of sexual assault and assisting students with obtaining services. and
with the University?s judicial process, again with little to no oversight by the Former Title IX
Coordinator. In addition. based on the information provided by the University and its
administrators, OCR found that the Former Title IX Coordinator did not receive suf?cient
training and did not sufficiently implement the University's Title IX requirements. Information
provided by the University also showed, as discussed below, that the Former Title IX
Coordinator only received notice of ?ve of 43 reports of sexual violence and assault that
occurred from January 2010 through November 2014 and, thus, was not in a position to identify
problematic individuals, groups, or locations or to assess whether patterns of conduct or serial
perpetration occurred that the University should address.

OCR also found that, although the Former Title IX Coordinator's name. title, of?ce address, and
phone number appeared in some of the University?s Title IX policies and procedures, and the
University?s sexual assault pamphlet and brochure, it did not appear in widely disseminated
publications such as the course catalog. As already noted, it also did not appear in the
University?s Notice of Non-Discrimination, DEM Sexual Assault Policy, or the University ?5
Sexual Assault Procedures.

In January 2015, the University named the new Title IX and University Compliance Coordinator
(Current Title IX Coordinator). The Current Title IX Coordinator reported to OCR that since she
was hired. the University has revised and enhanced the role ofthe Title IX Coordinator.

OCR therefore concludes that the University did not comply with Title IX with reapect to the
training of the Former Title IX Coordinator and assigning her sufficient responsibilities and
duties. OCR will review and analyze the role ofthe University?s Current Title IX Coordinator
during its monitoring of the Agreement.

6. Handling of Criminal Complaints

The University?s former Title IX policies and procedures did not address how the University
handled criminal complaints that were brought against students, whether a criminal complaint
could trigger a University investigation, or the effect ofa criminal complaint on the University?s
Title IX investigative process. Notwithstanding, investigation did not reveal any
compliance concerns regarding the University?s practices regarding the handling of criminal
complaints.

The University?s Chief of University police stated that the University did not have a
memorandum of understanding with the local police or state police, but that the University police
shared a reporting system with the local police, and had a verbal agreement with the state police
that the state police would notify the University police ifa University student was involved in a
sexual assault. Subsequently, the University provided a copy of a 2012 Memorandum of
Understanding (MOU) between various agencies, including local law enforcement and the

Page 2 Ms. Amber Haning

University, stipulating that the purpose of the agreement is to coordinate multiple agency law
enforcement units to investigate violations of Maryland law. The University explained that.
under the MOU, University police report major crimes (including sexual assault) to local law
enforcement; local law enforcement then provides a trained investigator to conduct the
investigation.

OCR has concerns that the University?s MOU does not speci?cally address the coordination of
investigations of sexual harassment and sexual assault. OCR will review and analyze the
University?s handling of criminal complaints and the MOU during its monitoring of the
Agreement.

7. Training

OCR found that at the time of the underlying incidents in this complaint. there were multiple
de?ciencies in the University?s Title IX training. including the quality of the training that was
provided to those charged with implementing Title IX and the University?s Title IX grievance
procedures. as well as the training that was provided to the campus community. Documentation
provided by the University, as well as interviews with the Former Title IX Coordinator revealed
that the Former Title IX Coordinator and Key Administrator 2, who served as a liaison for
victims in the University?s Title lX process, were not adequately trained regarding their Title IX
responsibilities.

In addition. the University informed OCR that all employees are required to take an online
training regarding sexual harassment. OCR reviewed the online sexual harassment training
materials and found that, while it addressed sexual harassment in the employment context, it did
not address sexual harassmentlsexual violence as it relates to students or Title IX, and it did not
provide any information speci?c to the University. such as the University?s procedures for
reporting sexual harassmentt'violence or responsible employees. Additionally. while the Former
Title IX Coordinator told OCR that responsible employees were informed of their reporting
obligations during workshops and training, the University did not provide any speci?c
information regarding those workshops or trainings.

OCR also notes deficiencies with the training of former panel hearing members. While the Code
qumdenr Conduct stated that all new hearing panel members would participate in an orientation
session, it did not provide for specialized training for panel members who sat on panels where
the alleged violation was sexual harassment or sexual assault. The University advised OCR, and
Key Administrator 2 confirmed, that the Dean of Students provided hearing panel members with
training Speci?c to sexual harassment and sexual assault. Panel members also received periodic
additional training related to sexual harassment and sexual assault, such as training by
community organizations and the local police. However: one hearing panel member told OCR
that specialized training was not mandatory for hearing panel members. According to the
Current Title IX Coordinator, the University has revised and enhanced the training it provides to
the campus community.

OCR therefore concludes that the University?s training of relevant staff and students did not
comply with the requirements of Title lX. OCR will review and analyze the training the
University currently provides to the campus community during its monitoring of the Agreement.

Page 2 Ms. Amber Haning
8. Outreach

OCR found that the University provided the campus community with outreach regarding issues
surrounding sexual harassment and sexual violence in a variety of ways. For example, the
President?s Advisory Council Against Gender Based Violence (Advisory Council} was
comprised of administrators. faculty, and staff and was charged with coordinating programs and
distributing information and literature to the campus community, such as a campaign regarding
consent. One of the members of the Advisory Council explained to OCR that the Advisory
Council was started in 201] to bring together staff, faculty, students. and administrators for a
coordinated University response for education programming, policy, and training regarding
sexual harassment and assault. At the time of OCR's visit in April 2014, there were at least two
campus-wide programs each semester regarding sexual violence, as well as additional
programming for students during the first several weeks of the academic year where incidents are
more likely to occur. Additionally. Title IX policy statements, including the student conduct
process, are emailed to students every year. Moreover, the Current Title IX Coordinator advised
OCR that the University has revised and enhanced its outreach to the campus community.

OCR does not have concerns regarding the University?s outreach efforts.

9. Student Climate Information and Climate AssessmentfResponse

Key Administrator 2 and Key Administrator i told OCR that the University assesses student
climate through the National College Health Assessment 11 (the Assessment). The Assessment is
a survey that is issued every two years to gauge a number of health-related topics, including
sexual health. Key Administrator 2 used the survey results to inform the University?s practices
and to address trends regarding sexual harassment and assault. The University provided the
results of the 2009, 20] 1, and 2013 surveys that were completed by undergraduates. OCR has
concerns regarding the low response rate to the surveys: 21% in 2009, 15.8% in 20] l, and 1.6%
in 2013. in addition, 70% of the students who responded to the 2013 survey reported they did
not believe they received information regarding sexual assault from the University, which also
gave rise to concerns. In addition, although there are media reports ofa 20 I 5 climate survey, the
University did not provide the results to OCR.

OCR has concerns regarding the University?s assessment of student climate given the low
response rate of prior surveys. OCR will analyze the University?s assessment of student climate
during its monitoring of the Agreement.

10. Record Keeping Practices

in reviewing the data for the 43 other incidents that occurred from January 2010 through
November 20M, OCR observed that the University did not provide complete documentation for
thirty-one incidents, including witness interviews, investigative reports, communications with
parties, written notice of the outcome to the victim, or documentation continuing that the victim
was advised of on-campus and off-campus resources. including interim measures. Despite the
statements of the Dean of Students and Key Administrator 2. the data revealed that the Former
Title IX Coordinator was only noti?ed of five of the incidents and, thus, was not in a position to
identify problematic individuals, groups, or locations.

Page 2 Ms. Amber Haning

OCR therefore concludes that the University did not have record keeping practices that comply
with the requirements of Title IX.

11. Handling of Complaints and Incidents of Sexual Assault and Sexual Violence

OCR investigated whether the University provided prompt and equitable responses to sexual
violence complaints, reports andfor other incidents of which it had notice (knew or should have
known about), including those ?led by the Complainant I, Complainant 2, and other students?
complaints/reports. OCR also investigated whether any failure by the University to 
and equitably respond to complaints of sexual assaultfviolence of which it had notice, resulted in
individuals, including Complainant 1 and Complainant 2, continuing to be subjected to a
sexually hostile environment.

Complainant 1 Incident

Complainant was a senior at the University during the Spring 2013 semester. She resided in an
on campus residence hall and was involved in student government. The Complainant alleges
that, on February 27', 2013, she was raped by a fellow student (Accused Student) at an off
campus party. Soon after the incident, Complainant i left campus to stay at her parents? home.
It is undisputed that, on or about March 3, 2013, Complainant l?s father called Key
Administrator 1 and an employee to inform them that Complainant i would be out of school for
a few days as a result of the trauma from the rape. On March 4, 20I3, Key Administrator I
noti?ed Complainant 1?s professors that she missed or would be missing some classes due to
medical reasons.

Key Administrator I oversees various University functions, including but not limited to, student
conduct. It is undisputed that he did not report the alleged rape to SES or anyone else at the
University. Key Administrator I told OCR he did not report the incident because Complainant
's father asked him to keep it in con?dence and that, although he realized he had to report it at
some point, he wanted to have a conversation with Complainant before doing so in order to
make her aware of his obligations. Key Administrator 1 also told OCR that a conversation with
Complainant I became unnecessary because within a week of his conversation with Complainant
1's father. the Dean of Students informed him that Complainant 1 had reported the incident to
the police.

On March 3, 2013, Complainant 1 reported the incident to the state police. The Chief of
University police told OCR that one of her officers noti?ed her of Complainant report to the
state police, and that it is her of?ce?s practice to immediately notify the Dean of Students or the
Title IX Coordinator of any such reports. However, investigation did not find evidence
showing that the campus police informed SES or the Title IX Coordinator of Complainant 1?s
report to the state police. In addition, the Dean of Students told OCR that SES did not learn of
the incident until March 14, 2013, when Complainant returned to campus and discussed the
situation with him.

Complainant I told OCR that, during her March l4, 20B meeting with the Dean of Students she
told him that she did not feel safe on campus because, following the incident, the Accused
Student tried making contact with her several times, and started following her on campus. In
response, by email dated March 14, 2013, and in person on that date, the Dean of Students

Page 2 Ms. Amber Haning

advised Complainant and the Accused Student to avoid any contact with the other either in
person, written. verbal or electronic form. In addition, Complainant told OCR that the Dean of
Students informed her that she could receive counseling from the University?s counseling center
or a community counseling center, but that he did not discuss any other interim measures with
her. The Dean of Students, however, told OCR that he provided Complainant 1 with a pamphlet
that described all available interim measures. OCR reviewed the pamphlet and found that, with
respect to interim measures, it stated only that ?a survivor may request alternative academic,
living, or employment situations if such alternatives are available, feasible, and appropriate to the
facts of the sexual assault.? After the incident, Complainant 1 moved back home with her
parents who lived about one hour away because she did not feel safe and she continued to see the
Accused Student on campus.

Complainant informed OCR that, as a result ofthe incident, she experienced some difficulty in
her classes. The only interim measures offered by the University were an offer for counseling, as
well as to allow her a late withdrawal from her classes and an offer to contact her professors to
explain that the she was having difficulties because of the incident. Complainant I chose to
finish her classes and made arrangements with all of her teachers on her own in order to
complete her coursework. Last, Complainant I told OCR that she was initially told that she
would face disciplinary action for engaging in underage drinking the night of the incident. There
is no dispute that Complainant was not disciplined for engaging in underage drinking the night of
the incident. However, the Dean of Students acknowledged to OCR that he counseled
Complainant 1 about her consumption of alcohol the evening of the incident.

On March 14, 2013, the Accused Student was criminally charged with rape and other offenses as
a result of Complainant l?s report to the state police. The state police notified the campus police
ofthe charges, and on March 15, 2013, the Chief of University police called SES and advised the
Assistant Dean that the Accused Student had been charged with rape. Upon review of the
statement of charges, the University learned that there was information to indicate a possible
violation of University policy. The Dean of Students proceeded with setting up a judicial board
hearing panel.

Thejudicial board hearing was originally scheduled for April 2, 2013; however, at the request of
the Accused Student?s attorney, the hearing was delayed until April 12, 2013. Complainant I
told OCR that she was not aware that she could have retained an attorney to represent her or
requested to reschedule the hearing. in addition, Complainant 1 told OCR that she provided the
Dean of Students with a list of several witnesses to be interviewed; however oniy a few ofthem
were contacted. Moreover, a few days before the judicial board hearing, at the request of the
Accused Student?s attorney, two of the Accused?s character witnesses were added to the hearing
list and the record was supplemented with reference letters. investigation found that
Complainant was not provided with the opportunity to provide character witnesses or reference
letters.

There is no dispute that, prior to thejudicial board hearing, the Accused Student violated the no-
contact directive. As a result, the University developed a schedule for the Accused Student and
Complainant 1. It is also undisputed that subsequent to the development of the schedule, the
Accused Student violated the agreement on two separate occasions. A ?show cause" hearing
was scheduled for the Accused on April 11, 2013 to determine if any additional action was
necessary in accordance with the Policy Statement Booklet. Complainant was not made aware

Page 2 Ms. Amber Haning

that this hearing was taking place and she was not a participant in the University?s proceedings
regarding the Accused Student?s violation of the restricted hours. As a result of the April 1 l,
2013 hearing, it was agreed that, except to attend class, the Accused Student would be restricted
to an area of campus close to his residence hall. Key Administrator 2 informed Complainant 1 of
these restrictions after the hearing. The Dean of Students told OCR that the University did not
consider the Accused Student?s violations of the no contact order to be a form of sexual
harassment.

The hearing to address Complainant 1?s allegation of rape was held on April 12, 2013. The 
Dean of Students explained that the Accused Student was permitted to have an attorney present
at the hearing in accordance with the Code omedenr Conduct, and that Complainant 1 was also
permitted to have an attorney present. When asked how Complainant 1 would have been aware
that she had this opportunity, the Dean of Students stated that he told her that she could have a
support person present. However, the Complainant indicates that she was never notified that her
support person could be an attorney. The evidence reflects that Complainant 1 was able to
secure a friend of the family who is an attorney to be her support person during the hearing.

Complainant I told OCR that none of the Accused Student?s evidence was shared with her
before the hearing, which the Dean of Students denies. in addition, she told OCR that she was
not aware that she could bring physical evidence to the hearing, and was upset when she learned
that the Accused Student brought such evidence. As noted, while the Accused Student was
permitted to submit character witnesses, Complainant 1?s request to submit similar witness
Statements was denied

As a result of the hearing, the Accused Student was found responsible for Sexual Misconduct 1.
Sexual Misconduct II, and Endangering the Health and Safety of On April 16,
2013, the University issued the following sanctions: suspension through the end of the Fall 2013
semester; requirement to reapply for readmission; designated as persona non grata on the
University?s campus throughout the duration of the suspension; and if readmitted. disciplinary
probation through graduation. The Disposition gave the parties ?ve business days to appeal the
outcome, and directed the parties to the Code of Student Conduct for information regarding
appeals. Both parties filed appeals.

Pursuant to University policy, the Accused Student was permitted to remain on campus pending
the outcome of the appeal and the April 11, 2013 restrictions on his movement on campus
remained in place. After thejudicial board hearing, Complainant 1 informed University of?cials
that the Accused Student again violated the no contact agreement. In response, the Dean of
Students informed the Accused Student in writing that he was required to leave campus
immediately due to reports from the University police indicating that he had violated the no
contact order.

The Dean of Students held another "show cause hearing? on April 22, 2013 by phone. There is
no transcript or written record of this hearing, and OCR confirmed that Complainant 1 did not
attend the hearing. The Dean of Students told OCR that Complainant was asked to provide a
statement for the hearing. As a result of April 22, 2013 show cause hearing, the Accused Student
was charged with ?Refusing a Reasonabie Request and Harassment," and an administrative
hearing was scheduled to adjudicate these charges on May 14, 2013.

Page 2 Ms. Amber Haning

On April 26, 2013, Key Administrator I sent written notice to the Accused Student and
Complainant denying their appeals and notifying them that the outcome ofthe hearing on April
12, 2013, took effect immediately.

As a result of the May 14, 2013 administrative hearing to adjudicate the charges of Refusing a
Reasonable Request and Harassment, the Accused Student pled responsible for Refusing a
Reasonable Request and agreed that he would not reapply or otherwise be readmitted to the
University following the one year suspension. OCR notes, however, that no disposition was
made with respect to the harassment charge. The University described the outcome as a
"permanent suspension from the University." Complainant received notice of the
outcome of the administrative hearing via email from the Dean of Students, including that the
Accused Student would no longer be eligible to return to the University. However, OCR notes
that the University did not provide Complainant a copy of the disposition of the hearing,
despite her request. OCR further notes that the University did not consider the hearing regarding
the Accused Student?s failure to abide by the no contact order to be a hearing governed by the
requirements of Title IX.

ANALYSIS of Complainant 1 Incident:

Based on the investigation, OCR concludes that the University failed to respond and
equitably to Complainant l?s report of sexual violence. Additionally, OCR concludes that
Complainant was subjected to a sexually hostile environment, and continued to be subjected to
a hostile environment due to the University's failure to provide adequate interim measures and to
take steps to stop the harassment and prevent its recurrence.

First, the University did not respond after two mandatory reporters had notice of the
incident. Although Key Administrator 1, another employee. and the campus police learned of
the incident on or about March 3, 2013, OCR's investigation found that the University did not
initiate any action until Complainant herself reported the incident to the Dean of Students on
March 14, 20l3. Although Key Administrator I told OCR he did not initiate any action
regarding the incident because Complainant l?s father asked him to keep it in con?dence, OCR
notes that while a complainant?s request for confidentiality is a factor a recipient should
consider, a university must take action to address incidents upon receiving notice of them.
including but not limited to whether honoring a request for confidentiality is appropriate under
the circumstances presented. investigation did conclude, however, that once Complainant
1 reported the incident to the Dean of Students, the University did move forward to
hold a hearing and address the subsequent appeal.

In addition, the University did not adequately provide Complainant with interim measures.
Although the Dean of Students put a no contact order in place, it was not effective in keeping the
Accused Student away from Complainant l, as evidenced by the Accused Student's multiple
violations of the no contact order. In addition, although Key Administrator 2 was assigned as
Complainant l?s support person and information was provided to Complainant I about available
counseling services, the evidence did not show that the University provided her with guidance
regarding the full range of available interim measures. Further, OCR found that in some
instances, Complainant 1 arranged for interim measures, such as alternative coursework, on her
own.

Page 2 Ms. Amber Haning

The University?s investigation of the incident involving Complainant I was not adequate.
reliable or impartial. The University conductedonly a cursory investigation that consisted of
speaking to several student witnesses and reviewing the police report prior to holding a hearing
regarding the incident. However, the University did not interview or invite all of the relevant
witnesses identi?ed by Complainant 1 to the hearing, even though it considered the hearing to be
its investigation. In addition. both parties did not have equitable access to an attorney because
Complainant was not informed that she could have counsel present until the day of the hearing.
Although Complainant 1 was able to ?nd an attorney to accompany her to the hearing, unlike the
Accused Student, she did not have the bene?t of being represented by counsel throughout the
University?s process. Furthermore, Complainant was not afforded the same opportunity to
provide character witnesses as the Accused Student. OCR also has concerns that Key
Administrator 2, who served as a victim?s advocate, also served as a member of the hearing
panel, which may have posed a potential conflict of interest at the time. investigation
was not able to resolve the factual dispute regarding whether Complainant was denied access
to the Accused Student?s evidence prior to the hearing. Despite its written policies, the
University employed the correct standard of proof (preponderance of the evidence), informed the
parties of the status of the investigation, and provided both parties with an equal opportunity to
appeal the outcome ofthe hearing.

The University provided the parties with written notice of the outcome ofthe hearing and appeal
pertaining to the incident. In addition. the evidence reflects that Complainant 1 received email
noti?cation of the outcome of the May I4, 2013 administrative hearing that addressed the
Accused Student?s failure to abide by the no contact order. However, the University erroneously
did not treat the Accused Student?s failure to abide by the no contact order as a violation of Title
and as such, it did not provide Complainant with all of the information regarding that
proceeding as required by Title IX, such as the hearing disposition form. The evidence also
re?ects that the University took actions that could have a chilling effect on students reporting
incidents of sexual assault. Speci?cally, Complainant 1 perceived the Dean of Students as
having suggested she could receive discipline for having engaged in underage drinking the night
of the offense and the Dean of Students con?rmed that he counseled Complainant regarding
her consumption of alcohol on the evening ofthe incident.

Complainant 2 Incident

On May 20, 20] 4, just prior to her graduation from the University, Complainant 2 reported to the
Former Title Coordinator that a campus police of?cer sexually assaulted her in his police
vehicle during the fall 2009 semester.

investigation found that after meeting with Complainant 2, the Former Title IX
Coordinator immediately contacted the campus police, and the campus police turned the case
over to the county authorities. The Chief of University police and the Former Title IX
Coordinator told OCR that they informed Complainant 2 of available University and community
resources. Complainant 2 told OCR that the Former Title IX Coordinator did not provide her
with any information regarding her reporting options, but rather, only took her information and
then about 20 minutes later the Chief of University police called her and asked her to come in for
an interview with investigators from the county, which she did. Complainant 2 also told OCR
that she had received counseling from the University counseling center immediately following
the incident and that she received an email from Key Administrator 2 detailing outside resources

Page 2 Ms. Amber Haning

after she reported the incident to the Former Title IX Coordinator. The Chief of University
police told OCR that she kept in touch with Complainant 2 throughout the summer and provided
OCR with copies of text message exchanges between July and September 2014 in which she
checked?in on Complainant 2 and provided her with updates on her criminal case. The
University asserts that no additional remedial measures or accommodations were deemed
necessary for Complainant 2. as she graduated from the University and left the area shortly after
making her report. Complainant 2 confirmed that she graduated the day after she made her
report and left campus shortly thereafter to begin ajob in anotherjurisdiction.

The University suSpended the police of?cer on May 23, 2014. As a result of the criminal
investigation, on May 29, 20 the of?cer was criminally charged. On September 9. 2014. the
police of?cer pled guilty and the plea required that be, among other things, not have any contact
with Complainant 2, resign from the campus police department, and provide information to the
county poiice as to similar activities known to him that occurred within the campus police.

In addition, the Chief of University police informed OCR that during the course of the criminal
investigation of the police of?cer, she received an anonymous letter regarding possible
misconduct by another University police of?cer (Of?cer 2). In addition, a witness who was
interviewed during the investigation of Complainant 2?s incident, provided information that
coincided with the allegation in the anonymous letter. The Chief of University police explained
that in response to the anonymous letter, she requested a law enforcement investigation of
Officer 2, and that the police explored the allegations but they were not able to substantiate the
allegations. The Former Title IX Coordinator told OCR that, while she received an
administrative internal summary of the investigation of the incident from the Maryland State
Police, she never reviewed the summary because it was sealed, and she had no reason to believe
that other of?cers engaged in misconduct, or that there were other student victims.

The Chief of University police and the Former Title IX Coordinator told OCR that the University
referred the matter to the police and did not conduct a separate Title IX investigation
independent of the police investigation. They also explained to OCR that investigations of
police conduct are conducted pursuant to the Law Enforcement Of?cers Bill of Rights, which, in
this instance, was conducted by the Maryland State Police Internal Affairs unit. While
Complainant 2 did not receive a copy of the summary of ?ndings from the Maryland State
Police, the Chief of University police stated that Complainant 2 was advised ofthe plea bargain.

ANALYSIS of Com lainant 2 Incident:

   

The University failed to conduct an adequate, reliable, and impartial investigation ofthe incident
involving Complainant 2, and failed to take steps to prevent the recurrence of harassment and
correct its discriminatory effects with respect to Complainant 2. Speci?cally, the evidence
reflects that the University failed to respond to Complainant 25 report of sexual assault
by conducting a simultaneous Title IX investigation. In addition, because the campus police
officer committed the sexual assault in the context of carrying out his responsibilities as an
employee, the University was responsible for the discriminatory conduct and for remedying any
effects of the harassment on Complainant 2, as well as for ending the harassment and preventing
its recurrence. Moreover. the University erroneously determined that it did not have any
obligations to Complainant 2 under Title IX because she had graduated from the University soon
after making her report. Although the University provided some limited information regarding

Page 2 Ms. Amber Haning

counseling services, it determined that additional services were not necessary because
Complainant 2 graduated from the University the day after making her report, and thus,
Complainant 2 was not offered the full range of remedial services. Thus, OCR concludes that
Complainant 2 was subjected to a sexually hostile environment due to the University?s failure to
respond to her complaint.

Incidents Involving Other Students

OCR also reviewed documentation for all student complaints or reports of sexual harassment or
sexual violence from January 2010 through November 2014. In total there were forty-three
formal and informal complaints or reports made during that time period. As set forth below.
OCR identified several general deficiencies in the way in which the University processed
complaints of sexual harassment and assault from January 2010 through November 2014. which
further support ?ndings that the University failed to provide for adequate, reliable, and
impartial investigationsd:

In one of the incidents, the University had not yet completed its investigation at the time it
provided responsive data to OCR. OCR notes, however, that the University never provided
subsequent documentation demonstrating that the incident had been fully investigated andfor
resolved.

In ?ve incidents, the University did not conduct an investigation under its Title IX policies and
procedures, but instead relied upon the local police or the campus police to conduct an
investigation. Additionally, the documentation provided by the University did not show that in
any of these five incidents, University staff, including Dean of Students, the Former Title IX
Coordinator, or Key Administrator 2, were advised of the incident. In one of the incidents, the
University did not complete its investigation at the request of local law enforcement, who
requested that the University delay its investigative process in order to not compromise the
integrity of the criminal investigation. However, the documentation provided by the University
is insufficient to demonstrate that the University completed its investigation once the police
completed gathering evidence. As noted above, a recipient has an independent responsibility
under Title IX to investigate an incident of sexual harassmentfsexual assault, apart from any
separate criminal investigation. Similarly, a recipient should not wait for the conclusion of a
criminal investigation or criminal proceeding to begin its own Title 1X investigation. Although a
recipient may need to delay temporarily the fact-?nding portion of a Title IX investigation while
the police are gathering evidence, it should not permanently cease all investigatory activities.

In nine of the incidents. the University did not proceed with an investigation at the victim?s
request. A school should weigh and consider requests for confidentiality carefully, while at the
same time it must consider its responsibility to provide a safe and nondiscriminatory
environment for all students. including the student who reported the sexual violence. This
requires a balanced, deliberative approach to each individual request from a victim. However.
the documentation provided by the University does not demonstrate that the University engaged
in a deliberative determination regarding whether, in each instance, it could honor the victim?s
request not to proceed, and whether that decision was balanced against the need to keep the
community safe.

 

4 In separate correspondence to the University, OCR provided speci?c case numbers for each issue area referenced
below.

Page 2 Ms. Amber Haning

In six of the incidents, the University did not proceed with an investigation because the incident
occurred off campus or involved a non-student victim or perpetrator. Thus, in these six
incidents, the University did not make a determination regarding whether the conduct occurred in
the context of an education program or activity, or had continuing effects on campus, or in an
off-campus education program or activity.

In one of the incidents, the University did not conduct an investigation in accordance with its
policy and procedures, and instead resolved the complaint informally, even though there were at
least two additional complaints ?led against the same alleged perpetrator. Because the
University did not conduct a formal investigation, it never determined whether the victim or
other students experienced a hostile environment, and thus, did not provide appropriate remedies.
In addition, there were twenty?four cases in which the documentation did not support that the
victim was advised of the available on campus and off campus resources, including counseling.

OCR found that the University conducted an investigation under its Title IX policies and
procedures in thirteen of the Forty-three incidents. Of? those thirteen investigations, in two of the
cases identi?ed by OCR, the documentation did not support that the victim was provided with
interim measures. and, as noted above, in many cases the documentation did not support that the
victim was advised of the available on campus and of? campus resources, including counseling.
Title IX requires a school to take steps to ensure equal access to its education programs and
activities, and to protect the victim, as necessary, including taking interim measures before the
final outcome of the investigation and to take steps to end the harassment and correct its effects,
once a ?nal determination is reached. Imposing sanctions against the perpetrator, without more,
likely will not eliminate the hostile environment, prevent its recurrence, and effectively remedy
its effects.

In addition to the thirteen incidents which were investigated by the University, there was one
case in which the documentation showed that the accused student was advised of his right to
have witnesses at the hearing, while the victim was not, and there were nine cases in which the
documentation did not support that the parties were allowed to provide evidence and witnesses.
As noted above, a school?s grievance procedures should provide for the adequate, reliable and
impartial investigation of complaints in which both parties are provided an equal opportunity to
present witnesses and evidence. While a school has ?exibility in how it structures the
investigative process, for Title IX purposes, a school must give both the complainant and the
alleged perpetrator any rights that it gives to one of them. A balanced and fair process that
provides the same opportunities to both parties will lead to sound and supportable decisions.

Similarly, while schools are required to provide a prompt and equitable response to all Title IX
complaints, in one of the thirteen incidents which were investigated by the University. the
University did not provide a prompt and equitable response, as the complaint was not resolved
for nearly [0 months. Last, in eight of the thirteen incidents which were investigated by the
University, the documentation is not sufficient to demonstrate that the victims were notified of
the outcome ofthe investigation in writing, as required by Title IX.

Moreover. OCR has further concerns because in one of the incidents, the alleged perpetrator
withdrew prior to the matter being addressed by a panel hearing and a judicial hold was placed
on his student account. meaning that the alleged perpetrator could not be readmitted to the

Page 2 Ms. Amber Haning

University until after the hearing was held. This is in direct contravention with the University?s
grievance procedures, which state: ?Withdrawal from the University after a violation report has
been?fiied does not excuse the stadentfrom the hearing. Students wnofait' to appear after proper
notice may be deemed to have pt?eaded responsible to the charges pending against them."

As set forth above, OCR also notes signi?cant concerns regarding the University?s record-
keeping practices. Speci?cally, OCR requested that the University provide a cepy of all
investigative reports, ?ndings or other documents that describe the outcome and resolution,
including a description of all the remedies and sanctions resulting from the decision. In twenty
three cases, the investigative tile provided by the University was incomplete and missing specific
documentation referred to in the cover sheet that the University developed to respond to 
request for information regarding each incident. In addition, it is unclear from the data whether
the information was monitored by anyone at the University. In fact, the evidence re?ects that the
Former Title IX Coordinator was only advised of tive of the incidents. While the University
asserts that the Former Title IX Coordinator was advised of an additional two incidents, it did not
provide any documentation substantiating this assertion. A Title IX coordinator?s core
responsibilities should include overseeing the school?s response to Title IX reports and
complaints, and identifying and addressing any systemic problems.

These issues are addressed in the Resolution Agreement which requires the University to
reassess the comparative cases where OCR identi?ed de?ciencies, using its revised policies and
procedures once they are approved by OCR. and to make improvements in its record keeping
practices. 

CONCLUSION

OCR determined that the University?s policies and procedures and its Notice of Non-
Diserimination are not compliant with the regulation implementing Title IX, at 34 CPR. 
1068 and [06.9. In addition, OCR determined that the University failed to provide prompt and
equitable responses to complaints of sexual violence of which it had notice, including the
complaints/reports made by Complainant I, Complainant 2, and other students, in violation of
the regulation implementing Title IX, at 34 C.F.R. 106.31. OCR also determined that the
Universityis failure to provide an equitable response to complaints of sexual harassmenttviolence
allowed Complainant 1, Complainant 2, and possibly other students to be subjected to a sexually
hostile environment that denied or limited the students? ability to participate in or benefit from
the school?s program, in violation of 34 l06.31.

RESOLUTION

On September 6, 2016, the University provided OCR with the enclosed signed Resolution
Agreement, which addresses the compliance concerns identified in investigation and.
when fully implemented, will resolve the University?s noncompliance with Title IX.

In accordance with the Agreement, the University agrees to:
II Publish an anti-harassment statement, revise its Title IX grievance procedures, and ensure
that the reSponsibilities of the Title IX Coordinator and any Deputy Coordinators are
consistent with Title IX.

Page 2 Ms. Amber Haning

I Provide training to ensure that all members of the University community including
students, faculty, administrators, and other staff are trained regularly on issues related
to sexual harassment and on the requirements of Title 1X.

- Reinvestigate andfor investigate the comparative incidents in which OCR determined that
the University failed to conduct an adequate investigation. provide written notice of
remedial services for the comparative incidents in which OCR determined that the
University failed to provide such services, and provide written notice of the outcome of
the complaint for the comparative incidents in which OCR determined that the University
failed to provide such notice.

- Review the complaints and reports of sexual harassment andr?or sexual assault made from
January I, 2010, through the date of the Agreement, to determine whether the University
investigated each complaint or report and equitably.

- Enhance its outreach to and feedback from students, including by conducting an annual
climate check or series of climate checks with students on campus to assess the
effectiveness of steps taken by the University towards providing a campus free of sexual
misconduct. In addition, the University will convene a committee, composed of staff and
students, to develop a plan for educating students and employees about sexual harassment
and assault. .

0 Provide OCR with case ?les and other information concerning all incidents of alleged
sexual harassment or sexual assault at the University for the next two academic years.

- Reimburse Complainant and Complainant 2 for expenses for
counselinglacademicltherapy services for the assessment andfor treatment of lingering
effects of the incidents that are the subject of this complaint.

OCR will monitor implementation of the Agreement. If the University fails to implement the
Agreement, OCR may initiate administrative enforcement or judicial proceedings to enforce the
speci?c terms and obligations of the Agreement. Before initiating administrative enforcement
(34 C.F.R. 100.9, 100.10), orjudicial proceedings to enforce the Agreement. OCR shall give
the University written notice of the alleged breach and a minimum of sixty (60) calendar days to
cure the alleged breach.

This concludes 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 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. formal policy statements are approved by a duly authorized OCR
official and made available to the public. The complainant may have the right to ?le a private
suit in federal court whether or not OCR finds a violation.

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. Ifthis happens, the complainant may ?le another complaint alleging such treatment.

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 identi?able information, which, if
released, could reasonably be expected to constitute an unwarranted invasion of personal
privacy.

Page 2 Ms. Amber Haning

Should you have any questions, please contact Amy Niedzalkoski, Team Attorney at 215-656-
857] or or myself at 215-656-6935 or 

 

{nee-rely,

Beth Gellman-Beer
Supervisory Attorney
OCR Philadelphia

Enclosure

Resolution Agreement
Frostburg State University
Complaint Nos. 03-13-2328 and 03-15?2032

In order to resolve the above-referenced complaint ?led with the us. Department of Education,
Office for Civil Rights (OCR), under Title IX of the Education Amendments of 1972, 20 U.S.C.
1681 et seq., and its implementing regulation at 34 CPR. Part 106 (Title IX), Frostburg State
University (University) agrees to take the steps set forth below. The Resolution Agreement has
been entered into voluntarily and the University and does not constitute an admission by the
University that the University is not in compliance with Title IX or its implementing regulation.
OCR recognizes that the University has cooperated with OCR during the course of the
investigation.

ACTION STEPS
I. Statement

The University will issue a statement to all students, faculty and staff that will be printed in the
University?s newspaper, posted in prominent locations in the University, and published on the
University?s website, stating that the University does not tolerate sex disorimination, including
sexual harassment, sexual assault, and sexual violence. The statement will also state that
retaliation against individuals who ?le complaints about sex discrimination, sexual harassment or
sexual assaultfviolence, or participate in the investigation of such complaints, is prohibited. The
statement will encourage any member of the University community who believes he or she has
been subjected to sexual harassment to report the harassment to the University, and will note the
University?s commitment to conducting a prompt investigation and appropriately addressing any
violation of the University's policies in a timely manner. The statement will inform students
how to report allegations of sex discrimination, including sexual harassment, sexual assault and
sexual violence, and include the appropriate contact information for the designated staff member
to whom students may report allegations. The statement will advise that any findings by the
University that a student or employee has engaged in an act or acts of sex discrimination,
including sexual harassment, sexual assault, and sexual violence, or retaliation will be 
addressed in accordance with University policies and may result in disciplinary action. The
statement will make clear that such disciplinary action may include, if circumstances warrant,
suspension, expulsion or termination of employment. The statement will encourage students,
faculty and staff to work together to prevent acts of sex discrimination of any kind, and will
highlight resources available to individuals who have been Subjected to sex discrimination,
including sexual harassment, sexual assault and sexual violence. The statement will be provided
to OCR for review and approval.

Reporting Reguirement: By November 1, 2016, the University will provide for OCR
review and approval, a copy of the proposed 
Statement. Within 45 days of OCR approval of the proposed 
Retaliation Statement, the University will submit to OCR documentation substantiating
that the Statement has been posted in prominent

Page 2 Frostburg State University Resolution Agreement, Nos. 03-13-2328 and 03-15-2032

locations and widely published, including in the University?s newspaper and on the
University's website.

ll. Title IX Coordinator

Since the ?ling of the above?referenced complaints, OCR acknowledges that the University has
taken a number of steps in an effort to ensure its compliance with 34 C.F.R ?106.8(b) and
in addressing the requirements for a Title 1X Coordinator, including hiring a full-time
Title IX Coordinator in January 2015. As a result, the University has reviewed and revised the
responsibilities of its Title IX Coordinator, and by this Agreement agrees to conduct an
additional review of the current responsibilities of its Title IX Coordinator and any Deputy
Coordinators by December 31, 2016, to determine and ensure that their responsibilities are
consistent with Title IX. Based on the Title IX Coordinator?s reSponsibilities, the University will
develop a description of corresPonding mandatory training requirements for its Title IX
Coordinator. The responsibilities and training requirements will continue to include or will be
revised to include the following:

1. The Title IX Coordinator will have expert knowledge of the University's Title IX
grievance procedure(s) and will oversee all Title IX received by the
Title IX Coordinator and all other departments, of?ces, and individuals identi?ed as
responsible employees or delegated the responsibility for receiving andfor investigating
of sex discrimination, including sexual harassment and sexual
violence, and will address any patterns or systematic problems that arise during the
review of such and assess overall efficacy of coordination and overall
response by the University to sexual harassment and sexual violence, including the
implementation and ef?cacy of interim measures, the steps taken to stop sex
discriminationfharassment found to have occurred and prevent its recurrence, steps taken
to eliminate any hostile environment that has been created for students and steps taken to
remedy any discriminatory effects on the complainant and others, as appropriate.

2. The Title IX Coordinator will retain ultimate oversight and responsibility for any Deputy
Coordinators the University designates to assist the Title IX Coordinator. The University
will also develop speci?c statements of the roles and responsibilities of each Deputy
Coordinator that clearly delineate the scope of each Deputy Coordinator?s duty and their
subordinate roles to the Title IX Coordinator.

3. The Title IX Coordinator will have ultimate responsibility for: the prompt investigation
of reportsl?complaints alleging sexual harassment and sexual violence; adjudication of
whether seanl harassment or sexual violence has occurred in individual cases; the
identi?cation of remedies (including interim measures) necessary to address sexual
harassment or sexual violence, eliminate any hostile environment, and prevent its
recurrence; and consultation, as necessary, on any matter where it has been determined
that sexual harassment er sexual violence has occurred in order to ensure the University?s
compliance with Title IX. To the extent that any of the duties of the Title lX Coordinator
will be delegated to other individuals at the University, the statement will clearly state
what will be delegated to whom and how the Title IX Coordinator will retain oversight of
any delegated responsibilities.

Page 3

10.

ll.

12.

I3.

- Frostburg State University Resolution Agreement, Nos. 03-13-2328 and 03-15-2032

The Title IX Coordinator will oversee the provision of initial and ongoing training to any
Deputy Coordinators and any other individuals from any University department or of?ce
delegated the responsibility for receiving andr?or investigating reports of sex
discrimination, including sexual harassment and sexual violence. The Title IX
Coordinator will also have suf?cient experience or training in these same concepts. The
training content will include the substantive requirements of Title IX and how to
investigate reports under Title IX that allege sex discrimination, including sexual
harassment and sexual violence.

The Title IX Coordinator will be responsible for the development, coordination, and
implementation of periodic Title IX training for the University community staff,
faculty, resident assistants, coaches, students, etc.).

The Title IX Coordinator will have responsibility for the continued development,

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University leadership to raise awareness in the University community about all forms of
sex discrimination (including sexual harassment and sexual violence) and the
University?s policies and procedures regarding such matters.

The Title IX Coordinator will be responsible for providing information to students and
employees regarding their Title IX rights and responsibilities, including but not limited
to: information about the resources available on and off University property, the formal
and informal resolution processes, the availability of interim measures, and the ability to
?le a complaint with local law enforcement and the University simultaneously.

The Title IX Coordinator will be responsible for periodic review and assessment of the
University?s Title IX procedures, and any related policies and procedures, to ensure that
they are consolidated to the maximum extent possible to provide an efficient resource for
students, faculty, and staff.

Neither the Title IX Coordinator nor any Deputy Coordinators shall have other job
responsibilities that create a conflict of interest with regard to their duties and
responsibilities under Title IX.

The Title IX Coordinator will be responsible for coordinating communications with
University Police and local law enforcement regarding the University's obligations under
Title IX and for serving as a resource on Title IX issues.

The Title IX Coordinator will be responsible for coordinating the development and
implementation of periodic assessments (including, for example, surveys and focus
groups) of campus climate with regard to sexual harassment and sexual violence.

The Title IX Coordinator will coordinate with appropriate administrators, student
services personnel, and law enforcement of?cers to identify and address any patterns or
systemic problems under Title IX and to assess the overall ef?cacy of the coordination
among these various of?ces.

The Title IX Coordinator will annually review all reports/complaints of discrimination on
the basis of sex, including sexual harassment and sexual violence, in order to identify, to
the maximum extent possible, and address any patterns or systemic problems, such as:

athletes, graduate students, members of student organizations; whether any individuals or
organizations engaged in repeated misconduct, whether there are any patterns of barriers
to reporting for any group of students, whether there are any campus or off-campus
locations which are repeatedly the site of alleged incidents andfor if 

1 . 

Page 4 - Frostburg State University Resolution Agreement, Nos. 03-13-2328 and 03-15?2032

were not processed and equitably in compliance with Title IX and the
applicable policies and procedures.

Reporting Requirement: The University agrees that the responsibilities of the Title IX
Coordinator described above are essential to its commitment to compliance with Title IX
and will not change or minimize those responsibilities, except with approval of OCR. By
February 1, 2017, the University will provide for OCR review and approval, a copy of the
Title IX Coordinator?s responsibilities and corresponding mandatory training
requirements. Within 45 days of OCR's approval, the University will revise the Title IX
Coordinator?s responsibilities and corresponding training requirements as may be needed.
Within 60 days of revising the Title IX Coordinator?s responsibilities and corresponding
mandatory training requirements, the University shall provide OCR with the revised Title
IX Coordinator's responsibilities and corresponding mandatory training requirements,
and documentation substantiating that the University implemented and distributed the
revised Title IX Coordinator's responsibilities and corresponding training requirements to
the University?s Title IX Coordinators.

111. Notice of Noll-Discrimination

The University will revise its notice of non-discrimination to state that the University does not
discriminate on the basis of sex in its programs and activities and that the prohibition extends to
employment, and submit it to OCR for review and approval. The notice of non-discrimination
will include the nameftitle, of?ce address, telephone number, and electronic mail (email) address
of the University's Title IX Coordinator. The notice of nondiscrimination must include that
inquiries to the University concerning application of Title IX and its implementing regulation
may be referred to the Title IX Coordinator or to OCR. The University will broadly publish its
revised notice of nondiscrimination, including on the University's website and in its promotional
materials, student and employee handbooks, application forms and its other published materials
in accordance with 34 CPR. Inserts may be used pending reprinting of the
publications.

Reporting Requirement: By November 1, 2016, the University will provide, for OCR
review and approval, a copy of its amended notice of non-discrimination, a list of the
titles of the publications in which the notice of nondiscrimination appears g. University
catalog, web site, student handbook), and a copy of at least one publication disseminated
to the campus community, printouts, or link to an on-line publication containing the
notice.

IV. Title IX Policies and Procedures

OCR acknowledges that since its investigation beginning in 2013, the University has reviewed
and revised its policies in order to improve its investigation and response to sexual misconduct
and comply with Title IX as well as reviewed and revised its policies and procedures on sexual
misconduct. On January 1, 2016, the University approved and disseminated its most recent
update of its Policy on Gender Based Harassment and Violence, as well as the Procedures for
Investigating and Resolving Reports of Prohibited Conduct.

Page 5 Frostburg State University Resolution Agreement, Nos. 03-13-2328 and 0345-2032

The University will revise, as may be necessary, its policies and procedures that address
complaints of sex discrimination (including sexual harassment, sexual assault, and sexual
violence), including but not limited to the Gender?Based Harassment and Violence Policy, and
the Procedures for Investigating and Resolving Reports of Prohibited Conduct, fer OCR review
and approval. Noting that many of the provisions below are already included in the most recent
revision of the Gender-Based Harassment and Violence Policy and Procedures; with regard to
such provisions, the University will retain them in the revised procedures. The University will
ensure that the old policies are not available anywhere on the University?s website to the extent
practicable, and that all references to them have been removed from current University
publications. The University will also ensure that notice is provided to students and employees
of the existence of the revised policies and procedures and that these materials are widely
distributed.

The University will ensure that the following provisions are in its policies and procedures or will
adopt revisions as needed to provide, at a minimum, the following:

a) notice that the procedures apply to alleging all forms of sex
discrimination (including sexual harassment, sexual assault and sexual violence)
against employees, students or third parties;

b) notice to students and employees of where reportst'complaints may be ?led, including
contact information for the Title IX Coordinator;

c) provisions for adequate, reliable and impartial investigation of 
including the opportunity for both the complainant and alleged perpetrator to present
witnesses and evidence;

d) designated and reasonably prompt time frames for the major stages of the
investigative process, as well as the process for extending timelines, that apply
equally to the parties to the complaint;

e) written notice to the complainant and alleged perpetrator of the outcome of the
investigation and any appeals;

assurance that the University will take immediate and appropriate steps to stop any
harassment or sexual violence, prevent recurrence and remedy discriminatory effects
on the complainant and others, if appropriate;

g) where the procedures allow the parties to have a lawyer or other representative at a
hearing, a statement that both parties will have an equal opportunity to have
lawyersfrepresentatives present and that any restrictions on the
lawyersirepresentatives? ability to speak or otherwise participate will be applied
equally to both parties; 

h) appropriate de?nitions and examples of what types of actions may constitute sex
discrimination (including sexual harassment, sexual assault, and sexual violence)
including a clear and consistent definition of what does and does not constitute
consent to sexual conduct;

i) a statement clarifying that the University's policy and procedures for addressing
complaints of sex discrimination, including sexual harassment, sexual assault and
sexual violence, apply to: all University facilities, programs, and activities, including
discrimination that occurs on campus, discrimination that occurs at off-campus
programs or activities that are sponsored by the University, discrimination that occurs

Page 6 Frostburg State University Resolution Agreement, Nos. 03-13-2328 and 03-15-2032

i)

k)

1)

off-campus that has an effect on campus, the University?s professional and graduate
schools, and any sexual harassment perpetrated by an employee, regardless of
location, if in the context of the employee's provision of aid, bene?ts or services to
students;

a statement that all responsible employees are expected to report sexual
harassment, including sexual assault and sexual violence that they observe or learn
about;

provisions that make clear the right of the victim not to appear in the hearing room or
otherwise confront the alleged perpetrator during the grievance process, including any
hearings or appeals;

if the procedures allow for cross?examination of the parties, the procedures should
strongly discourage allowing the parties to personally question or cross-examine each
other during a hearing;

to) provisions for con?dential reporting, including informing a complainant that the

11)

0)

P)





University?s ability to respond may be limited in the event of a request for
con?dentiality;

provisions ensuring that the parties are afforded regular updates regarding the status
of the investigation, as well as similar and timely access to any information used at
hearings;

provisions clarifying that any informal resolution mechanism set forth in the
procedures will only be used if the parties voluntarily agree to do so; that the
complainant should not be required to resolve the problem directly with the
respondent; and a statement that there will be instances when the informal resolution
mechanism is inappropriate mediation is prohibited in cases of sexual assault,
and in cases involving a student complaining of sexual harassment against an
employee in a position of authority over the student); and that the complainant must
be noti?ed that he or she has the right to end the informal process at any time and
begin the formal stage of the complaint process; 

a statement that the preponderance of the evidence standard will be used for
investigating alleged sex discrimination, sexual harassment and sexual violence
complaints and a statement that it is the University?s responsibility to determine
whether sex discrimination, sexual harassment or sexual violence has occurred;

a statement that retaliation and retaliatory harassment is prohibited against any
individual who ?les a sex discrimination complaint with the University or participates
in a complaint investigation in any way, as well as a clear explanation of how
retaliation or retaliatory harassment can be reported to the University;

notice of a student?s right to file a criminal complaint and a Title IX complaint
simultaneously, that the University may need to temporarily suspend the fact-finding
aspect of a Title IX investigation for an appropriate but brief period of time while the
law enforcement agency is in the process of gathering evidence and that the
University will resume its Title IX investigation as soon as noti?ed by the
law enforcement agency that it has completed the evidence gathering process;
provisions ensuring that students are notified, in writing, of the availability of interim
measures to protect students during the University?s investigation of possible sexual
harassment and during any judicial process, including appeals (such as University-
enforced no contact orders, changes in class schedules, counseling, other mental

Page 7' Frostburg State University Resolution Agreement, Nos. 03-13-2323 and 03-15-2032

health services, academic assistance, the ability to retake or withdraw from courses
without penalty, etc.) and that the University will take steps to ensure, where possible,
that such interim measures do not negatively impact the complainant;

t) an assurance that the University will not allow con?icts of interest (real or perceived)
by those handling the complaints;

u) an assurance that the University does not consider evidence of past sexual
relationships when making a determination regarding these complaints;

v) notice of potential remedies for students;

w) notice of potential sanctions against perpetrators; and

x) sources for counseling, advocacy and support.

Reporting Requirements:

1. By November I, 2016, the University will provide fer review and approval, a
draft of the revised procedures and any additional policies or informational
documents that address complaints alleging discrimination on the basis of sex
(including sexual harassment, sexual assault, and sexual violence). Within 90 days,
OCR will review these grievance procedures and related materials in order to ensure
that they comply with Title IX and this Agreement.

2. Within sixty (60) calendar days of written notification from OCR that the revised
Title IX procedures are consistent with the Title IX requirements, the University will
certify to OCR that the University has formally adopted the revised procedures,
updated all printed publications and on?line publications with the revised procedures
(inserts may be used pending reprinting of these publications) and electronically
disseminated the revised grievance procedures to students and employees. This
documentation will include evidence of the electronic dissemination of the revised
grievance procedures to students and employees, a list of the titles of the publications
in which the information appears (eg. University catalog, Title IX web site, student
handbook), as well as a copy any such publications, which may include either a
printout or a link to an on?line publication containing the revised grievance
procedures or, if not yet finalized, a copy of the insert for printed publications. The
University will also provide documentation of how the revised procedures were
distributed and that University law enforcement, the Title IX Coordinator, students,
employees, staff, faculty and other appropriate University community members have
access to the procedures and know where copies may be obtained.

V. Sexual Misconduetfl'itle IX Training

The University is committed to publicizing, disseminating and providing a comprehensive
education and prevention program that informs the University community about the University?s
policies and procedures, with continuous efforts toward strengthening individual knowledge and
skills; educating responsible employees; fostering coalitions and networks both on?campus and
in the greater community of the City of Frostburg; and devoting resources to the education,
prevention and environmental change efforts to address issues related to alcohol and other drug

Page 3 Frostburg State University Resolution Agreement, Nos. 03-] 3-2328 and 03-15-2032

programs. In addition to current education and prevention initiatives, the University will provide
additional training as described below.

1. Training Responsible for Recognizing and Reporting Sexual Misconduct

The University will provide in-person or online training or refresher training to all employees
who interact with students on a regular basis and who are responsible for recognizing and
reporting incidents of sexual misconduct, to the extent they are not con?dential resources under
policy or applicable law. The training will cover, at a minimum: the University?s Gender Based
Harassment and Violence Policy and related procedures, the obligation of employees to report
sexual misconduct including what should be included in a report, any consequences for the
failure to report and the procedure outlining their responsibility to the student or other University
community member?s requests for con?dentiality, how to report sexual misconduct pursuant to
Title IX and the procedures, the person(s) to whom sexual misconduct must be reported, how to
recognize and identify sexual misconduct and the behaviors that may lead to and result in sexual
misconduct, the University?s responsibilities under Title IX to address such allegations and the
relevant resources available. The training should also include information on the reporting
obligations of University staff, the student?s option to request that their identifying information
not be shared with the respondent or that no action be taken, the existence of available
con?dential advocacy, counseling, or other support services, the right to ?le a sexual harassment
complaint with the University and to report a crime to campus andfor local law enforcement, the
attitudes of bystanders that may allow conduct to continue, the potential for victimization of
students who may have experienced sexual misconduct and its effects on students, appropriate
methods for responding to a student who may have experienced sexual misconduct and the
impact of trauma on students who experience sexual misconduct. During the training, the
University will provide information on how to access online the Gender Based Harassment and
Violence Policy and associated procedures and forms for reporting sexual misconduct, or refer
them to their location within the publications they already possess.

Reporting Requirement: By January 31, 2017 and by the same date in 2018 and 2019, the
University will provide documentation to OCR demonstrating that it has provided the
training referenced in Action Step v.1 above. The documentation will include, at a
minimum, the date(s) of the training, the name(s) and titie(s) of the trainer(s), a copy of any
materials used or distributed during the training and a sign-in sheet or other evidence of
attendance with the names and titles of the individuals who attended the training.

2. Training for Community Members Involved In Implementation of Sexual
Misconduct/Title IX Grievance Procedures

The University will provide comprehensive training for its Title IX Coordinator, any Deputy
Coordinators, and any other University directly involved in- receiving,
processing, investigating, adjudicating andfor resolving complaints of sexual misconduct or who
will otherwise coordinate the University?s compliance with Title IX. The training will cover, at a
minimum: the University?s sexual misconducUTitle IX policies and grievance procedures; the
University?s obligations regarding the investigation of complaints; guidance from Title
lX?s prohibitions on retaliation; instruction on how to conduct and document adequate, reliable
and impartial sexual misconductfl?itle IX investigations for those charged with investigative

Page 9 - Frostburg State University Resolution Agreement, Nos. 03-13-2323 and 03-15-2032

duties, including information on working with and interviewing persons subjected to sexual
violence, information on particular types of conduct that would constitute sexual violence,
including same-sex sexual violence; the proper evidentiary standard of review of allegations of
sexual misconduct (preponderance of the evidence); information about coordination and
communication between the University and local external law enforcement; information on
consent and the role drugs and alcohol can play in the ability to consent; the importance of
accountability for individuals found to have committed sexual misconduct; the need for remedial
actions for the respondent, complainant and school community; how to determine credibility;
how to evaluate evidence and weigh it in an impartial manner; con?dentiality; the effects of
trauma; and cultural awareness training regarding how sexual misconduct may impact students
differently depending on their backgrounds.

Reporting Requirement: By December 31, 2016, and by the same date in 2017 and 2018
the University will provide documentation to OCR demonstrating that it has provided the
training referenced in Action Step V.2., above. The documentation will include, at a
minimum, the date(s) of the training, the name(s) and title(s) of the trainer(s), a copy of any
materials used or distributed during the training and a sign-in sheet or other evidence of
attendance with the names and titles of the individuals who attended the training.

3. Training of Students

The University will review and revise as needed, its programs, materials and training addressing
sexual misconduct for students, including transfer students and graduate students. The University
will ensure that, during the monitoring of this agreement, all incoming students receive training
approved by OCR. The training will include, at a minimum, information on the University?s
sexual misconduct/Title IX grievance procedures, the University's obligations regarding the
investigation of reportsr'complaints, guidance from OCR, and Title prohibitions on
retaliation. The training will also include information on particular types of conduct that would
constitute sexual violence, including sexual assault and information on consent and the role
drugs and alcohol can play in the ability to consent. The training will also make students aware
of the University?s prohibition against sexual harassment, sexual violence and retaliation,
educate students on how to recognize such forms of sex discrimination when they occur, inform
students regarding how and to whom any incidents of sexual harassment, sexual violence and
retaliation should be reported, provide a general overview of Title IX, the rights this law confers
on students, the resources available to students who have experienced sexual harassment, sexual
violence and retaliation, and the role and authority of OCR to enforce Title IX. The training
should be presented in lay terms familiar to University students, and illustrated with examples
relevant to student life at the University. Information included in the training will be provided to
students on an annual basis. During the ?rst year of this agreement, the University will ensure
that all returning students are provided with training. In subsequent years, the University will
send an email to all students at the beginning of each semester providing the information
outlined in this paragraph.

The University will identify any additional training needed for speci?c groups, including but not
limited to, fraternities, sororities, and athletes base on assessments made by the Title IX
Coordinator.

Page 10 Frostburg State University Resolution Agreement, Nos. OS-I 3-2323 and 03-15-2032

VI.

Reporting Requirement: By May 31, 2017, and by the same date in 2018 and 2019, the
University will provide documentation to OCR demonstrating that it has provided the
training referenced in Action Step V.3., above. The documentation will include, at a
minimum, the date(s) of the training, the name(s) and title(s} of the trainer(s), a copy of any
materials used or distributed during the training and a sign?in sheet or other evidence of
attendance with the names and titles of the individuals who attended the training, and a copy
of the email issued at the start of each semester.

Student Outreach

The University will ensure that the Gender-Based Harassment and Violence Elimination
Task Force (Task Force) includes the following members: the University?s Title IX
Coordinator; (ii) an additional University level administrator with knowledge,
responsibilities and authority relevant to the duties of the Committee; representative
administrators, faculty members and students; and (iv) such other individuals as the
University determines appropriate, such as University ecunselors or health service
workers or representatives from any community-based organizations which provide
services to the University related to sexual harassmentiviolence prevention. The Task
Force will develop a plan to be implemented at the University for educating students and
employees about issues related to sexual harassment, including what constitutes sexual
harassment and the impact it has on individual students and the educational environment,
the prohibition of sexual harassment in the educational setting, the importance of
reporting sexual harassment, how and to whom to report incidents of sexual harassment,
the University?s obligation to respond appropriately to notice of sexual harassment and
potential consequences and corrective action if harassment is found. The University will
implement the plan and monitor its effectiveness.

The University will, as appropriate, revise its existing materials or develop new materials
on sexual misconduct to be distributed to students during the University?s orientation
sessions, currently FSU Preview, for new students. The University will also, as
appropriate, revise its existing materials or develop new materials on sexual misconduct
to be distributed to students upon receipt of complaints of sexual misconduct. The
materials will contain information on what constitutes sexual misconduct, what to do if a
student has been subjected to sexual misconduct and contact information for on and off-
campus rescurces for students who have been subjected to sexual misconduct. In
addition, the University will include information on: how to file a reportfcomplaint of
sexual misconduct with the University; the name and contact information for the
University?s Title IX Coordinator or the individual with whom are
?led; a description of the Title IX Coordinator?s role; information on how to obtain
counseling and academic assistance in the event of sexual misconduct; information on
what interim measures can be taken to protect a complainant; and how to request interim
measures if the alleged perpetrator lives on campus and/or lives in the same dorm andfor
attends the same classes as the complainant.

Page I - Frostburg State University Resolution Agreement, Nos. 03-l 3-2323 and 03-15-2032

Reporting Requirements:

1. By December I, 2016, the University will provide OCR with documentation that it
has implemented Action Step V1.1, including a list of names and titles of the
members of the Task Force, meeting dates and minutes.

2. By January 1 and June 1, 2017, the University will submit to OCR for review a list of
recommendations submitted by the Task Force, as well as a list of the
reconunendations that were adopted by the University. In particular, this list will
include a copy of the Task Force?s recommended actions relating to the procedures,
outreach, training and/or other University practices addressed by this Agreement,
together with supporting information that explains the bases to proceed or not to
proceed with any recommendation (such as climate checks), and the University?s
plans with respect to those recommendations (including timeframes for such plans).
The Task Force will incorporate feedback from OCR in its recommendations.

3. By February 1, 2017, the University will provide OCR with documentation that it has
implemented Action Step V1.2, including copies of the materials that the University
developed in accordance with Action Step V1.2, for OCR review and approval. After
approval of the training materials, and within 10 days following the final 2017
FSU Preview session, the University will provide documentation demonstrating that
the University disseminated the information during FSU Preview, including the FSU
Preview schedule, the names and titles of employees who presented on the required
topics, an agenda and copies of any materials that were used or distributed regarding
the required topics.

VII. Climate Checks

The University will conduct climate checks with students to assess the steps and measures taken
pursuant to this Resolution Agreement and otherwise by the University to achieve its goal of a
campus free of sexual misconduct, in particular sexual assault and sexual violence. A climate
check may be accomplished in many ways, including but not limited to, a written or electronic
survey, focus groups, open forum information sessions for students and employees cr designated
publicized walk-in hours for campus community input. Any written or electronic survey used
should contain questions about the student?s knowledge of sexual misconduct (including sex
discrimination andfor sexual harassment?violence) any experiences with sexual misconduct while
attending the University and the student?s awareness of the University?s sexual misconductf'l?itle
IX policies and procedures and include a contact person, such as a counselor, who the student
can go to for support or if they wish to discuss an issue of sexual misconduct in person.

The University will submit for OCR review and approval a description of the tools used for
conducting a climate check or series of climate checks. The description will include the
University?s strategy for implementing the climate check(s) and analyzing the results.
Information gathered during these climate checks will be used to inform future proactive steps
taken by the University to provide an environment that is safe and supportive to all students and
in compliance with Title IX. Finally, part of the University?s ongoing climate checks will
include informing students about to whom they can report concerns of sexual misconduct

Page 12 Frostburg State University Resolution Agreement, Nos. 03-13-2328 and 03?15-2032

(including sex discrimination andfor sexual harassmentfviolence), such as the Title IX
Coordinator or a counselor, as described in other provisions of this Agreement. The University
will submit proposed future revisions to its climate check tool(s) for OCR review and approval
during the monitoring of the Agreement.

Reporting Rguirement: By December 1, 2016, the University will provide documentation
for OCR review and approval, demonstrating implementation of Action Item VII, including a
description of how, when and by whom the climate check(s) were completed; copies of
aggregate data of student and employee written responses to surveys or narrative summaries
of verbal responses; summaries of other relevant information obtained; and documentation
demonstrating the actions that the University plans to take in response to the information
gathered during the climate checks. By August 1, 2017 and the same date in 2018, the
University will provide OCR with the same documentation regarding assessments conducted
and any responsive actions taken, for OCR review and approval.

Individual Remedies

The University will issue, by certi?ed mail, a written offer to reimburse out-of-pocket expenses
for any counseling therapy, or academic services for Complainant #1 and Complainant #2 from
the date of notice to the University through the execution date of this Agreement to each
complainant that relates to the incidents that are the subject of these complaints. Reimbursement
shall be contingent upon receipt by the University of written, supporting documentation such as
billing invoices, receipts, or other similar records of the complainant?s out-of-pocket expenses
for counseling therapy, or academic services. Reimbursement for academic services shall be
limited to courses or tutoring taken at the University or, if token elsewhere, to ?llfill an academic
requirement of the University. The University?s letter will inform each complainant that she has
thirty (30) calendar days from the date of the letter to accept the offer by providing written notice
of acceptance to the University.

Reporting Requirement: By December 5, 2016, the University will provide OCR with
a copy of the letter that it sent to each complainant offering reimbursement for
counseling/academicftherapy services for each complainant, and copies of each
complainant's response, in compliance with Action Step If Complainant #1 or
Complainant #2 accepts the University?s offer, the University will provide OCR with
documentation substantiating that it provided reimbursement for such services, in
compliance with Action Step 

IX. Complaint Reviews and Student Focused Remedies

1. In accordance with Title IX and the standards outlined in Action Step IV of this
Agreement, the University will review the complaints and reports of sexual
harassment andfor sexual assault made from January I, 2010, through the date of
this Agreement to determine whether the University investigated each complaint
or report and equitably, including but not limited to, assessing: whether
the appropriate definitions and analyses were used under Title IX, the appropriate
evidence standard to make determinations regarding allegations of sexual
misconduct, the equal opportunity of the parties'to provide witnesses and other

Page 13 Frostburg State University Resolution Agreement, Nos. 03-] 3-2323 and 03?15-2032

evidence, the interim relief provided to protect the complainant during the
pendency of the investigation, the written notice of the outcome (including any
appeal) and appeal rights to the complainant and the accused, and the steps taken
to prevent the recurrence of sexual misconduct and to address any hostile
environment created by the harassment andfor assault. For any incidents which
the University determines were not investigated in accordance with Title IX, the
University will take appropriate action to address any problems identi?ed in the
manner in which these complaints were handled, including reopening the
investigation and conducting an investigation that complies with the requirements
of Title IX, andfor providing appropriate remedies that may still be available for
the complainants andlor accused students in these cases, including, referrals to
counseling or academic assistance or adjustments, or other appropriate relief.
These reviews will at a minimum carefully scrutinize issues noted by OCR during
the course of this investigation. The University will offer counseling or other
appropriate services to individual students during its review andfor reinvestigation
of any of the incidents. The University will submit the results of its review
conducted pursuant to Action Step to OCR for review and approval. While this
assessment will cover all complaints during the relevant time period, it will
speci?cally address the following:

a. For the ?ve incidents identified by OCR under separate cover where
the University did not conduct an investigation under its Title IX
policies and procedures, the University will conduct andfor complete
its investigation of the allegations under Title IX. As part of this
process, the University will determine whether new witnesses need
to be interviewed, whether previously interviewed individuals need
to be contacted for follow-up questioning and whether further
documentation needs to be obtained. The University will ensure that
the investigation is adequate, reliable and impartial in accordance
with Title IX, and the University will provide each party with a
written summary of its ?ndings. If the University determines that
the allegations of sexual harassment andfor sexual assault are
substantiated, the University will offer remedial services, including
an offer of counseling andfor academic services to the victim. In
addition, the University will ensure that the Title IX Coordinator is
advised of the outcome of each review and that each review is
ately documented-

b. For the nine incidents identi?ed by OCR under separate cover where
the University?s documentation did not support that the parties were
allowed to provide evidence and witnesses, the University will
assess whether, in conducting its initial investigation, both parties
were provided with an equal opportunity to present witnesses and
other evidence. In the event that the University determines that any
party in any of the above-referenced incidents was denied this
Opportunity, the University will reinvestigatc the incident under Title

Page 14 Frostburg State University Resolution Agreement, Nos. 03-13-2323 and 03-15-2032

and in accordance with the standards outlined in Action Step IV
of this Agreement. As part of this process, the University will
determine whether new witnesses need to he interviewed, whether
previously interviewed individuals need to he brought in for follow?
up questioning and whether further documentation needs to be
obtained. The University will ensure that the investigation is
adequate, reliable and impartial in accordance with its revised
procedures, and the University will provide each party with a written
summary of its ?ndings. If the University determines that the
allegations of sexual harassment andfor sexual assault are
substantiated, the University will offer remedial services, including
an offer of counseling andfor academic services to the victim. In
addition, the University will ensure that the Title IX Coordinator is
advised of the outcome of each review and that each review is
appropriately documented.

c. For the 26 incidents identi?ed by OCR under separate cover where
the documentation did not support that the victim was provided with
interim measures or not advised of the available on campus and off
campus resources, the University will assess whether there are any
appropriate remedies that may still be available for the complainants
in these cases, such as counseling andfor academic adjustments, and,
if appropriate, will make an offer in writing to the complainant for
the provision of such services. In addition, the University will
ensure that the Title IX Coordinator is advised of the outcome of
each review and that each review is appropriately documented.

d. For the eight incidents identi?ed by OCR under separate cover
where the victims were not noti?ed of the outcome of the
investigation in writing, the University will provide written notice to
the parties of the outcome of its investigation of the complaint. In
addition, the University will ensure that the Title IX Coordinator is
advised of the outcome of each review and that the notice to each
party is properly documented.

Reporting 

I.

By March 31, 2017, the University will submit to OCR for review and approval
the results of its review conducted pursuant to Action Step IX, including
documentation of its investigation andfor reinvestigation of the Incidents
referenced in Action Step and Action Step and determinations
regarding remedies for Incidents referenced in Action Step The report
will speci?cally identify any sexual misconduct complaints or reports that were
not handled and equitably, all supporting materials relating to the
University?s review and the University?s planned action(s) to address any
problems identi?ed in the review.

Page 15 Frostburg State University Resolution Agreement, Nos. 03-13-2323 and 03-15-2032

X.

l.

2. Within 45 days of approval, the University will take appropriate action to
address any problems identi?ed in its review and provide documentation of these
actions to OCR.

Record Keeping

The University will submit documentation of its centralized record keeping process for
documenting and tracking complaints of sexual harassment for OCR review and approval.
The University will ensure that this process requires the University to maintain information
that includes the location where the incident took place, the name of the individual who
reported the allegation, the identi?cation of the alleged victim and alleged perpetrator,
smnmaries of witness interviews, documentation of investigative steps completed and the
determination, including disciplinary actions, if any, of all parties involved. The University
will demonstrate that the process developed by the University requires that the University
maintain all evidence listed herein pursuant to the University?s document retention policies.
The University will also produce documentation evidencing that the process requires the
University to maintain information regarding requests for con?dentiality, the individual
responsible for assessing the University?s determination regarding the request for
con?dentiality, as well as interim andfor remedial services provided to the complaining party,
including referrals to counseling andfor academic services in accordance with University
document retention policies. The University will also indicate the individual(s) responsible
for maintaining and reviewing this information and the location where the records will be
maintained.

The University will provide case ?les for each incident alleging sexual harassment, including
sexual assault and sexual violence, investigated at the University during the preceding
academic year: a description of how the incident came to the University?s attention 
whether reported by a student or parent, or witnessed by a staff member), the location where
the incident took place, a description of the incident, a detailed written narrative describing
how the University investigated the incident, including the names of all witnesses
interviewed and a list of any documents or other evidence reviewed, a statement as to
whether the University concluded that sexual harassment occurred or did not occur and a
description of the steps taken by the University to remedy any harassment that occurred and
prevent its recurrence.

Reporting Requirements:

1. By November 30, 2016, the University will provide for OCR review and approval a
description of its record?keeping process developed under Action Step X.1.

2. By December 31, 2016, and at the end of each calendar year through the monitoring
of this Agreement, the University will provide OCR with documentation
demonstrating that it has implemented Action Step X2, including copies of the initial
report, any records, and the investigative ?les, including those of the University's
Title IX Coordinator, showing the response and remedies obtained, if any.

Page 16 Frostburg State University Resolution Agreement, Nos. 03-13-2328 and 03-15-2032

XI. Code of Conduct

The University will review and revise its Student Code of Conduct as needed to ensure that it is
consistent with its revised Title IX policies and procedures referenced above in Action Step IV.

Reporting Requirement: By February 1, 2017, the University will submit to OCR its
revised Student Code of Conduct and documentation continuing that it has publicized and
disseminated its revised Student Code of Conduct, including a description of how it was
distributed, copies of its revised student handbook(s) and a link to its webpage where the
revised Student Code of Conduct is located.

XII. Memorandum of Ugderstanding (MOU)

The University will review its existing Memorandum of Understanding (MOU) with the local
law enforcement agency reaponsible for investigating sexual violence. The University will
supplement or amend the MOU to make clear that a University student may pursue a criminal
action with law enforcement and a sexual harassment complaint through the University at the
same time regarding the same incident and that, where feasible and applicable, law enforcement
will assist the University in obtaining/testing relevant forensic evidence. The MOU will clearly
outline how the relevant law enforcement agencies will coordinate in such cases.

In addition, the MOU will outline the steps Title IX Coordinator, University Police and local law
enforcement will take to notify each other when they receive a complaint of sexual
harassment, including sexual violence and sexual assault, and to what extent, if any, they will
coordinate efforts on behalf of the University to and equitably respond, as well as to
accurately and thoroughly document those efforts, including all investigatory steps taken.

The University will develop written protocol with University Police that will specify when a
complaint of sexual assault is received, University Police will refer the complainant to the
University?s Title IX Coordinator and to local law enforcement if the complainant desires to ?le
criminal charges.

Reporting Requirement: By February 1, 2017, the University will provide OCR with a
copy of its MOU with local law enforcement and the written protocol with University law
enforcement. By February 1, 2017 and the same date in 2018 and 2019, the University
will submit to OCR documentation verifying that the MOU and protocol are being
followed, including with respect to complaints of sexual misconduct received by
University law enforcement.

The University understands that OCR will not close the monitoring of this Agreement until OCR
determines that the University has ful?lled the terms of this Agreement and is in compliance
with the regulations implementing Title IX, at 34 CPR. Sections 106.9, and
106.31, which were at issue in this case.

The University also understands that by signing this Agreement, it agrees to provide data and
other information in a timely manner in accordance with the reporting requirements of this

Page Frostburg State University Resolution Agreement, Nos. 03-13-2323 and 03-15?2032

agreement. Further, the University understands that during the monitoring of this agreement, if
necessary, OCR may visit the University, interview staff and students, and request such
additional reports or data as are necessary for OCR. to determine whether the University has
ful?lled the terms of this agreement and is in compliance with the regulations implementing Title
IX, at 34 CPR. Sections l06.9, and 106.31, which were at issue in this case.

In addition, the University understands and acknowledges that OCR may initiate administrative
enforcement or judicial proceedings to enforce the speci?c terms and obligations of this
agreement. Before initiating administrative enforcement (34 C.F.R. 100.9, 100.10), or
judicial proceedings to enforce this agreement, OCR shall give the University written notice of
the alleged breach and sixty (60) calendar days to cure the alleged breach.

 

 

69mm: ?3 /6 A:
Ronald H. Nowaczyk :57] Date
President

Frostburg State University