UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS, REGION XV
1350 E UC L ID AV E NU E , SU I T E 325
C LE V E L AN D , O H 44115

REGION XV
MICHIGAN
OHIO

March 24, 2017

David A. Campbell, Esq.
Vorys, Sater, Seymour and Pease LLP
1375 East Ninth Street
2100 One Cleveland Center
Cleveland, Ohio 44114-1724
Re: OCR Docket #15-11-2115 and #15-13-2141
Dear Mr. Campbell:
The U.S. Department of Education (the Department), Office for Civil Rights (OCR), has
concluded its investigation of the above-referenced complaints filed against Wittenberg
University (the University). On July 26, 2011, OCR received a complaint against the University
(OCR Docket #15-11-2115), which alleged that the University discriminated against a University
student (Student A) on the basis of sex by failing to respond promptly and equitably when
Student A reported that she was sexually assaulted by a male student athlete. In addition, the
complaint alleged that the University’s grievance procedure did not comply with Title IX. On
April 10, 2013, OCR received a second complaint against the University (OCR Docket
#15-13-2141), which alleged that the University discriminated against a University student
(Student B) on the basis of sex by failing to respond promptly and equitably when Student B
reported that she was sexually assaulted by a male student athlete at a party hosted by members
of a University athletics team.
OCR investigated whether the University failed to promptly and equitably respond to
complaints, reports, and/or incidents of sexual harassment and sexual violence of which it had
actual or constructive notice, including the reports filed by the two complainants in the abovereferenced complaints; and whether, as a result, students, including the complainants, were
subjected to or continued to be subjected to a sexually hostile environment.
OCR is responsible for enforcing Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681 et seq., and its implementing regulation, 34 C.F.R. Part 106. Title IX prohibits
discrimination on the basis of sex in education programs and activities operated by recipients of
Federal financial assistance from the Department. As a recipient of Federal financial assistance
from the Department, the University is subject to these laws.
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness
by fostering educational excellence and ensuring equal access.
www.ed.gov

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Background
The University is a private, Lutheran-affiliated, liberal arts university in Springfield, Ohio, with a
primarily undergraduate population of just under 2,000 students for the 2010-2011 through the
2016-2017 academic years.
Pursuant to their obligations under the Jeanne Clery Disclosure of Campus Security Policy and
Campus Crime Statistics (the Clery Act), the University reported forcible sex offenses over the
course of OCR’s investigation as follows: 2 (2010); 3 (2011); 10 (2012); 7 (2013); 6 (2014); 5
(2015). The University began reporting additional statistics on relationship violence and stalking
in 2013, respectively, as follows: 1, 0 (2013); 3, 3 (2014); 2, 10 (2015).1
Summary of Investigation
Over the course of its investigation, OCR reviewed documentation submitted by the University
and the complainants, including information regarding the incidents involving Student A and
Student B; the University’s policies and procedures regarding sexual harassment and sexual
violence for the 2010-2011 through the 2016-2017 academic years; University training
information and materials from the 2010-2011 through the 2015-2016 academic years for
students, staff, Title IX Coordinators, and administrators involved in the investigation of Title IX
complaints; and investigative files related to the University’s handling of complaints concerning
other incidents of sexual harassment and sexual violence filed from the 2010-2011 academic year
through the fall semester of the 2013-2014 academic year and three investigative files pertaining
to complaints filed during the 2015-2016 academic year. In addition, OCR interviewed Student
B and numerous University staff, including Title IX Coordinators, investigators, and hearing
panel members. OCR also conducted an onsite campus visit, during which OCR met with
students and held focus groups.
Summary of OCR Determinations
Based on the evidence obtained during its investigation, OCR found that the University violated
Title IX as follows:
o From the 2010-2011 academic year through March 2017, the notice of
nondiscrimination failed to indicate that inquiries could be referred to the University’s
Title IX Coordinator or OCR.
o During the 2010-2011 academic year, the University failed to designate a Title IX
Coordinator, and from the 2010-2011 academic year through March 2017, the
University failed to provide notice of its Title IX coordinator.

1

The most recent report was published on the University’s website in September of 2016, reporting statistics
through 2015. http://www.wittenberg.edu/sites/default/files/media/security/reports/2016%20ASR%20Report.pdf

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o From the 2010-2011 academic year through March 2017, the University’s Title IX
grievance procedures that were in place failed to comply with the requirements of
Title IX because they applied only to sexual harassment, including sexual assault, but
not all forms of sex discrimination.
o From the 2010-2011 academic year through the 2013-2014 academic year, the
University’s Title IX grievance procedures, as written and as applied to the
complaints of Student A, Student B, and other students, failed to comply with the
requirements of Title IX because mediation was permitted in matters involving sexual
assault.
o From the 2010-2011 academic year through the 2013-2014 academic year, the
University’s Title IX grievance procedures presented conflicting information
regarding whether they applied to third parties.
o From the 2010-2011 academic year through the 2011-2012 academic year, the
University’s Title IX grievance procedures expressly allowed for the termination of
its Title IX process if a party initiated a civil, criminal or agency proceeding.
o The University failed to provide equitable responses to the complaints of sexual
assault filed by Student A in XXXX 2011 and Student B in 2013.
In addition, OCR identified deficiencies during its review of the University’s sexual harassment
and sexual violence investigative files for the 2010-2011 academic year through the fall semester
of the 2013-2014 academic year; in particular, the files did not indicate whether the University
provided interim measures as needed, assessed and addressed any hostile environment that was
created, and provided notice of the outcome of the complaint to the parties.
On March 7, 2017, the University entered into a voluntary resolution agreement addressing these
identified violations and deficiencies. OCR’s determinations are explained below.
Legal Authority
The regulation implementing Title IX, at 34 C.F.R. § 106.31, provides generally that, except as
provided elsewhere in the regulation, “no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any . . .
education program or activity” operated by a recipient of Federal financial assistance.
Sexual harassment that creates a hostile environment is a form of sex discrimination prohibited
by Title IX. Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment can
include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or
physical conduct of a sexual nature, such as sexual assault or acts of sexual violence. There are
various factors that should be considered in determining whether sexual conduct was
unwelcome, including whether the student was legally or practically unable to consent to the
sexual conduct.

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Sexual harassment of a student creates a hostile environment if the conduct is sufficiently serious
that it denies or limits a student’s ability to participate in or benefit from the recipient’s education
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 of the harassment; the number of
individuals involved; the age and the subject of the harassment; the size of the university,
location of the incidents, and the context in which they occurred; and other incidents at the
university. The more severe the conduct is, the less the need to show a repetitive series of
incidents.
Once a recipient knows or reasonably should know of possible sexual harassment, Title IX
requires a recipient to take immediate and appropriate action to investigate or otherwise
determine what occurred; and if the conduct occurred, whether it created a hostile environment
for the harassed student(s) and for others. If an investigation reveals that sexual harassment
created a hostile environment, a recipient must take prompt and effective steps reasonably
calculated to end the harassment, eliminate any hostile environment, prevent the harassment
from recurring and remedy its effects on the complainant and others, as appropriate. 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. While
investigating an allegation of sexual harassment in the academic setting, it may be appropriate
for a University to take interim measures during the investigation to ensure individuals can fully
access a recipient’s programs while an investigation is pending.
A recipient must also consider the effects of the off-campus sexual harassment when evaluating
whether there is a hostile environment on campus because students often experience the
continuing effects of off-campus sexual harassment while at school or in an off-campus
education program or activity.
In situations where reported sexual harassment may constitute a criminal act, a recipient may
have an independent obligation to notify the proper authorities and inform a complainant of the
right to file a criminal complaint in addition to the recipient’s internal Title IX investigation. A
law enforcement investigation does not relieve the recipient of its independent Title IX
obligation to investigate the conduct.
Notice of Nondiscrimination and Designation of Title IX Coordinator
The regulation implementing Title IX, at 34 C.F.R. § 106.8(a), requires each recipient to
designate at least one employee to coordinate its efforts to comply with and carry out its
responsibilities under the regulation implementing Title IX (Title IX Coordinator), including
investigation of any complaint communicated to the recipient alleging any actions which would
be prohibited by the regulation implementing Title IX.

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The regulation implementing Title IX, at 34 C.F.R. § 106.9, also requires each recipient to
implement specific and continuing steps to notify applicants for admission and employment,
students and parents of elementary and secondary academic institution students, employees,
sources of referral of applicants for admission and employment, and all unions or professional
organizations holding collective bargaining or professional agreements with the recipient, that it
does not discriminate on the basis of sex in any educational program or activity which it
operates, and that it is required by Title IX and its implementing regulation at 34 C.F.R. Part 106
not to discriminate in such a manner. The regulation sets forth specific requirements for the
notice, including that it must state that inquiries concerning the application of Title IX to the
recipient may be referred to Title IX Coordinator, or to OCR’s Assistant Secretary.
During the 2010-2011 academic year, the University identified an employee affiliated with its
athletic department as its Title IX Coordinator and stated that complaints of sexual harassment
and sexual violence were handled by its Human Resources Department. However, OCR
obtained no evidence that the Title IX Coordinator was informed of the filing of these
complaints, their investigation, and their outcome.
During the 2011-2012 academic year, the University designated the Associate Vice President for
Human Resources as the University’s Title IX Coordinator (Coordinator 1). Coordinator 1 was
apprised of the filing of Title IX complaints, assigned investigators, assembled hearing panels,
issued communications to complainants and respondents throughout the course of the
investigation, and communicated with University counsel as needed during the processing of the
complaints.
From December 2012 to March 2014, the University designated its Director of Business Services
as the Title IX Coordinator (Coordinator 2). Coordinator 2 stated that she did not, herself,
conduct investigations of complaints alleging sexual assault or sexual harassment; rather, she
oversaw the process, including the Student Conduct/Student Development office’s work with
respect to its investigative activities. Coordinator 2 stated that, as the Title IX Coordinator, her
primary responsibilities included ensuring the University’s compliance with Title IX and serving
in an advisory capacity to the campus for the day-to-day work dealing with Title IX issues.
In April 2014, the University designated two employees to act as Co-Coordinators, Coordinator
3, who was the Dean of Students and responsible for student incidents, and Coordinator 4, who
was the Director of Human Resources and responsible for employee concerns. Coordinator 3’s
responsibilities were originally similar to Coordinator 2’s responsibilities. Coordinator 4
explained to OCR that his role was primarily to oversee complaints involving faculty and staff,
but that he was continually in communication with Coordinator 3 regarding all Title IX issues at
the University.
In March 2014, the University also designated several Deputy Coordinators, one to oversee
athletics, one to oversee complaints involving employees, and one to oversee student complaints.
In December 2016, the University designated Coordinator 3 as its Title IX Coordinator.
Coordinator 3 primarily oversees and supports the Director of Student Conduct, who is a Deputy
Title IX Coordinator, in coordinating the complaint process from intake through adjudication.

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OCR examined various University publications in effect from the 2010-2011 academic year
through the 2016-2017 academic year and found that a number of them contained a
nondiscrimination notice that did not contain all of the elements required by 34 C.F.R. § 106.9,
including the appropriate contact information for the University’s Title IX Coordinator(s).
For example, the 2011-2012 Student Handbook did not include information identifying a Title IX
Coordinator or providing contact information for obtaining additional information or raising a
concern related to possible discrimination. The 2013-2014 Title IX Campus Notification the
University published with respect to Clery Act requirements did not provide addresses for the
Title IX Coordinators and did not state that Title IX’s prohibition against sex discrimination
extends to employment matters. Further, the online job postings during the 2013-2014 academic
year that OCR examined stated that the University is required by Title IX not to discriminate on
the basis of sex, but did not state that the University does not discriminate on the basis of sex
with respect to employment, and did not include the names, titles or contact information for the
Title IX Coordinators or state that inquiries regarding Title IX may be directed to OCR and
provide appropriate contact information to do so.
Although the 2014-2015 Student Handbook contained a general nondiscrimination notice under
the heading “Affirmative Action Policy,” the notice did not specifically identify a Title IX
Coordinator. Although a subsequent section of the 2014-2015 Student Handbook identified the
Title IX Coordinators, their addresses were not provided anywhere in the document. The
2014-2015 Faculty Handbook contained a general prohibition against discrimination, but it failed
to identify or provide contact information for any Title IX Coordinator or other compliance
officer, or OCR. The University’s general nondiscrimination notice that appeared in the
2015-2016 Student Handbook, Staff Manual, and Faculty Manual also lacked contact
information for any University Title IX Coordinator or other designated compliance officer. The
lack of contact information persisted in the version of these publications available on the
University’s website as of March 2017.
As noted above and in summary, OCR determined that the University failed to comply with the
regulation implementing Title IX, at 34 C.F.R. § 106.8(a), with respect to designating a Title IX
Coordinator during the 2010-2011 academic year. OCR also finds that from the 2010-2011
academic year through March 2017 the University has not adequately notified students and
employees of contact information for the Title IX Coordinator as required by 34 C.F.R.
§ 106.8(a) and has not complied with Title IX’s requirements of 34 C.F.R. § 106.9 regarding its
notice of nondiscrimination.
Title IX Grievance Procedures
The regulation implementing Title IX, at 34 C.F.R. § 106.8(b), requires that a recipient adopt and
publish grievance procedures providing for the prompt and equitable resolution of student and
employee complaints alleging any action prohibited by the regulation implementing Title IX.
OCR has identified a number of elements in evaluating whether a recipient’s grievance
procedures are prompt and equitable, including whether the procedures provide for: (1) notice of
the procedure, including where complaints may be filed, that is easily understood, easily located,
and widely distributed; (2) application of the procedure to complaints alleging discrimination or
harassment carried out by employees, other students, or third parties; (3) adequate, reliable, and

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impartial investigation of complaints, including an opportunity to present witnesses and
evidence; (4) designated and reasonably prompt timeframes for the major stages of the complaint
process; (5) notice to the parties of the outcome of the complaint; and (6) an assurance that the
academic institution will take steps to prevent recurrence of any harassment and to correct its
discriminatory effects on the complainant and others, if appropriate. A grievance procedure
applicable to sexual harassment complaints cannot be prompt or equitable unless members of the
academic community are aware of information such as, its existence, how it works, and how to
file a complaint.
Grievance procedures may include informal mechanisms for resolving sexual harassment
complaints to be used if the parties agree to do so. However, it is not appropriate for a student
who is complaining of harassment to be required to work out the problem directly with the
individual alleged to be harassing him or her, and certainly not without appropriate involvement
by the academic institution. In addition, the complainant must be notified of the right to end the
informal process at any time and begin the formal stage of the complaint process. In some cases,
such as alleged sexual assaults, mediation will not be appropriate even on a voluntary basis.
During the course of the investigation, OCR reviewed numerous sets of policies and procedures
that were provided by the University or publically available on the University’s website. The
University’s “Sexual Complaint Grievance Board Abridged Manual,” dated January 2010,
contained its “Policies and Procedures Concerning Sexual Harassment and Misconduct,” under
which both Student A’s and Student B’s complaints were processed. The University
subsequently provided OCR with “Policies and Procedures Concerning Sexual Harassment and
Misconduct, Revised 2013.” Additionally, the University’s 2014-2015 Student Handbook
consolidated all policy and procedures in one place; the policy and procedures contained therein
remain largely unchanged from the policies and procedures revised in 2013.
The University’s 2015-2016 Student Handbook, effective fall 2015, made substantive changes to
the University’s policies and procedures. The 2015-2016 Student Handbook included: a “Sexual
Misconduct Policy” that covered sexual harassment, sexual exploitation, dating violence,
domestic violence, and nonconsensual sexual contact and nonconsensual sexual intercourse; a
Code of Conduct and Ethics that identified available sanctions; and procedures for investigation
and adjudication of alleged violations of the Sexual Misconduct Policy. The 2016-2017 Student
Handbook remained unchanged in relevant part from the 2015-2016 version.


Policies and Procedures Concerning Sexual Harassment and Misconduct
(2010-2012) (the original policies and procedures)

The original policies and procedures provided for the investigation and resolution of complaints
alleging sexual harassment and sexual misconduct. The procedures did not state that they
applied to complaints alleging sex discrimination or harassment carried out by third parties. The
original policies and procedures detailed a range of informal resolution mechanisms available
prior to the formal complaint process, which is initiated upon the filing of a written complaint.

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However, the policies and procedures stated that staff could not assist with an informal resolution
when a complaint alleged sexual assault, as this type of issue was to be handled through the
formal resolution and adjudication process.2
The original policies and procedures identified the major steps of the formal complaint process
as “assisted resolution” and “adjudication,” and identified stages of the adjudication process as:
investigation, hearing, determination and sanction, and right to an appeal. According to the
original policies and procedures, formal complaints could be filed with an “intake officer,”
designated as follows:
-

Assistant Dean of Students—for student-initiated complaints
Associate Vice President for Human Resources3—for student-, faculty- or staff-initiated
complaints
Associate Provost for Student Success and Retention—for student-, faculty- or staff-initiated
complaints

All complaints were to be written, signed, and filed with the Department of Human Resources.
In addition, the original policies and procedures stated that the Associate Vice President for
Human Resources would designate an investigative officer(s) for each complaint as follows:
-

the Assistant Dean of Students if the respondent was a student;
a member of the faculty if the respondent was a faculty member; or
a member of the administration or administrative staff, if the respondent was a non-faculty
employee.

The investigative officer’s responsibilities included gathering documents and conducting
interviews with all individuals reasonably believed to have relevant information, including the
complainant, the respondent, witnesses, and individuals alleged to have been the victims of the
similar conduct. In cases of sexual misconduct, defined as “a form of physical harassment that
includes a range of behaviors from unwanted touching and fondling to acts of sexual assault or
rape,” the University Chief of Police and Director of Security or the Chief’s designee would be
assigned to co-investigate. The original policies and procedures also stated that, should a party
initiate a “civil, criminal or agency proceeding,” the University reserved the right to initiate,
suspend, terminate, or continue its internal proceedings.
The original policies and procedures provided that the Associate Vice President for Human
Resources would then forward a complaint to an appointed “university officer” for assisted
resolution, the first step in the formal complaint process. During the assisted resolution phase,
according to the original policies and procedures, the university officer would communicate with
the parties separately to attempt to resolve the matter. Investigative witness interviews of the
2

Informal resolution mechanisms included direct informal resolution and assisted informal resolution. Under direct
informal resolution, the procedures provided information for persons wishing to attempt to directly resolve a
complaint with the alleged perpetrator and, for assisted informal resolution, the procedures identified University
employees, by title, who could be contacted for help in completing an assisted informal resolution, either as a first
step or after attempting direct informal resolution.
3
As of the 2011-2012 academic year, the Associate Vice President for Human Resources served as the University’s
Title IX Coordinator.

 Page 9 – David A. Campbell, Esq.
parties were not conducted at this stage and no determination on the merits was made.
According to University staff, during the time period the original policies and procedures were in
effect, the Senior Associate Dean of Students often facilitated the assisted resolution process
between complainants and respondents. The original policies and procedures contained no
prohibition with respect to using assisted resolution in matters involving allegations of sexual
assault. Examples of assisted resolution outcomes listed in the policies and procedures included
an apology, counseling and education requirements, access restrictions, disciplinary action, or the
dismissal of the complaint. The procedures stated that, unless one party specifically requested
adjudication, the University would attempt to resolve all formal complaints through assisted
resolution and that “experience has shown that assisted resolution can be particularly appropriate
in situations where there are different perceptions about whether consent was given or where
thoughtless or unintentional behavior has caused distress.” If an agreement was reached and
signed, the parties lost the right to have an adjudicated hearing. The original policies and
procedures did not address what steps might be taken in the event that either party failed to meet
the terms of the agreement reached through assisted resolution.
The original policies and procedures provided for “resolution by adjudication” in the event that
1) the complaint was not resolved through the assisted resolution stage within 15 days; or 2)
either the complainant or respondent requested the complaint be adjudicated; or 3) the University
decided to bypass assisted resolution. The chair of the University’s Sexual Complaint Grievance
Board (SCGB) would appoint a hearing panel from the SCGB board members “to determine if
the respondent has violated the institution’s policies concerning sexual misconduct [defined as
“physical sexual harassment that includes a range of behaviors from unwanted touching and
fondling to acts of sexual assault or rape.”].” The SCGB was composed of faculty, staff, and
student members.
The original procedures were silent as to the provision of interim measures; however, University
staff informed OCR that it was their practice to issue no-contact orders and to discuss other
support such as academic assistance with scheduling and assignments.
The adjudication process in the original procedures explained that supports were available to
both parties in the hearing process, which included an advisor, assigned by the Title IX
coordinator. The procedures stated that advisors could be SCGB members, not serving on the
hearing panel, and that they would provide general information about the hearing process and
offer assistance to help a complainant and/or respondent prepare to testify, question, rebut, and
make closing statements. The procedures stated that advisors were not counselors or legal
advisors and did not prepare statements, question witnesses, or provide testimony, though they
could help guide each party in his or her thought process and ask clarifying questions and offer
advice regarding the presentation of information without presenting or advocating for the party
in the case.
Within seven days of receipt of a complaint the investigator(s) would consult with the
complainant and the respondent in order to ascertain the facts and views of both parties. Then
the investigator would submit a written report of the factual findings to the chair of the hearing
panel; the findings were also to be provided to the complainant and respondent. The original
policies and procedures did not provide for an appeal or request for reconsideration at this stage.

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A hearing was convened before a hearing panel, formed from at least three members of the
University’s SCGB. The original policies and procedures stated that no one with a significant
conflict of interest for a particular case would be permitted to serve on the hearing panel for that
case.
The hearing panel was to hold a formal hearing during which it received testimony from the
investigator(s), the complainant, the respondent, and other witnesses, as the panel deemed
necessary. The procedures instruct the chair of the hearing panel to exercise discretion in
determining which witnesses were necessary to the hearing process. The hearing panel was
required to convene as promptly as possible, but no more than ten days after receiving the
investigative officer’s report. The respondent and complainant were to be provided a written
copy of the charges and investigative report, including the names of any witnesses and copies of
any documents that would be presented by the complainant. The procedures stated that “both
parties are expected to offer their own testimony.”
The policies and procedures required that the panel rely on the preponderance of the evidence
standard when making its determination by majority vote. Within five days of the conclusion of
the hearing, the panel was to prepare a written report, including a summary of the evidence
before the panel, the testimony heard, and a statement of findings of fact and conclusions as to
whether the University’s policy had been violated. When a student was found in violation, the
panel was to use the disciplinary guide provided in the Student Handbook to determine a
sanction. The chair was also to consult with the Vice President for Student Development to
determine whether the respondent had prior violations; then the chair was to issue the
determination to both the complainant and respondent, at the same time providing a copy to the
Associate Vice President for Human Resources and the Vice President for Student Development.
The procedures similarly detailed how sanctions would be determined and how to issue findings
for complaints against faculty and staff.
The original policies and procedures provided for a right to appeal for both the complainant and
the respondent and required that appeals be submitted to the Associate Vice President for Human
Resources within seven days of a determination. The original policies and procedures provided
three grounds for appeal: that new and significant evidence could be introduced; that there was
clear reason to believe the sanction was not consistent with the seriousness of the action; or that
the party’s right to a fair and impartial hearing was violated. A response to the appeal had to be
provided within ten days by a senior administrator. In addition, the procedures stated that any
appeal challenging the procedures applied in the formal resolution of a complaint could be
directed to the University President.
o Analysis
OCR found that the original policies and procedures did not comply with the Title IX regulations
in a number of respects: 1) they provided conflicting information regarding whether third parties
were covered; 2) they expressly allowed for the termination of the Title IX process if a party
initiated a civil, criminal, or agency proceeding; 3) they utilized “assisted resolution” as the
default first step of formal complaints; however, mediation is not appropriate for matters
involving sexual assault, and for complaints of sexual assault that were resolved pursuant to the

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assisted resolution process, the University failed to discharge its responsibilities to assess and
address any hostile environment that may have been created and to take effective action to
prevent its recurrence of any sexual harassment; and 4) they applied only to complaints of sexual
harassment and sexual “misconduct,” but not to other forms of sex discrimination prohibited by
Title IX.


Sexual Harassment Policies & Title IX Grievance Procedure (2012-2014) (the
revised policies and procedures)

The revised policies and procedures implemented by the University for the 2012-2014 academic
years addressed the processing of Title IX complaints simultaneously with a criminal
investigation. Specifically, the revised policies and procedures included a section titled
“Criminal Proceeding,” under which the University asserted it would make every effort to ensure
its investigation did not impede that of law enforcement, but with the assurance that the
University would not unreasonably delay its own proceedings. It also made clear that the
outcome of a legal proceeding would not dictate the outcome of the University’s process (e.g.,
the University might find that conduct constituted sexual harassment or sexual assault even if
law enforcement declined to prosecute for lack of evidence.) The revised policies and
procedures added one additional term to the assisted resolution process, by creating an exception
of when the severity of the alleged incident [was] was deemed by the University to require
adjudication. The revised policies and procedures did not define the types of complaints that
would fall under this exception. The revised procedures also provided information about interim
measures and stated that they may include such measures as no-contact orders during the
investigation and hearing, and additional steps such as altering student academic schedules,
University housing, or employment arrangements. The procedures stated that the University will
seek to minimize unnecessary or unreasonable burdens on either party, provided, however, “that
every reasonable effort will be made to allow the complainant to safely continue in his or her
academic schedule, University housing, and/or University employment arrangements.”
OCR determined that the revised policies and procedures violated Title IX because they
contained conflicting information as to whether the revised policies and procedures covered third
parties (the introduction to the revised policies and procedures included sexual harassment by
third parties and in another section, entitled “Resources for Individuals Who May be Victims of
Sexual Misconduct,” misconduct by third parties was omitted); permitted assisted resolution as a
first step to process formal complaints; and applied only to sexual harassment and sexual assault
and not other forms of sex discrimination, such as pregnancy discrimination, etc. (and absent any
other University procedures that did so in compliance with Title IX).


The 2015-2016 and 2016-2017 “Sexual Misconduct Policy” and Conduct Procedures
(2015-2016 and 2016-2017 policies and procedures)

The 2015-2016 grievance procedures applied only to allegations of sexual harassment and sexual
violence, but not the other forms of sex discrimination prohibited by Title IX, in violation of 34
C.F.R. § 106.8(b). OCR notes that the Student Handbook discusses other types of sex

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discrimination; however, the 2015-2016 policies and procedures, as written, do not apply to such
complaints and the University provided OCR no procedures for addressing such complaints that
meets the requirements of Title IX.
While the original and revised policies and procedures contained no references to interim
suspensions, the 2014-2015 policies and procedures and the 2015-2016 policies and procedures
stated that the Dean of Students, the Dean of Students’ designee, and/or Title IX Coordinator
may impose interim suspensions and/or separate a student from the community or university
housing pending the scheduling of a campus hearing on alleged violation(s) of the Student Code
of Conduct when immediate action is deemed necessary to ensure the physical and emotional
well-being of student(s). The 2016-2017 policies and procedures retain this language, but
incorporate it directly into the Sexual Misconduct Policy. The 2016-2017 policies and
procedures continue to provide that “when taking steps to separate the complainant and the
respondent, the University will seek to minimize unnecessary or unreasonable burdens on either
party; provided, however, that every reasonable effort will be made to allow the complainant to
safely continue in his or her academic schedule, university housing, and/or university
employment arrangements.”
University Response to Complaints of Sexual Harassment and Sexual Violence


Student A (OCR Docket #15-11-2115)

On July 26, 2011, a complaint was filed with OCR alleging that the University failed to respond
promptly and equitably to a complaint that Student A, a XXXX student, had been sexually
assaulted. Specifically, the complaint alleged that on XXXX 2011, Student A filed a formal
complaint with the University’s then Senior Associate Dean of Students (Senior Associate Dean),
an intake officer under the grievance procedures, stating that she had been sexually assaulted on
XXXX 2011, by a male student (Student C) XXXX.
The complaint to OCR stated that the University forced Student A to choose between a criminal
prosecution and the University process; failed to comply with its own policies concerning the
investigative and hearing processes; failed to properly train staff, including hearing advisors,
involved in the investigation and adjudication of Student A’s complaint; subjected Student A to
repeated and lengthy questioning about her sexual history and included the information about
Student A’s previous sexual history in its investigative report; and required Student A to provide
medical documentation in order to modify the hearing format.
o OCR’s Findings
On XXXX, 2011, Student A filed her complaint with the University, and Coordinator 1
immediately assigned the Senior Associate Dean to co-investigate the complaint with the
University’s Assistant Chief of Police (the Assistant Chief).

 Page 13 – David A. Campbell, Esq.
Internal University communications indicate that because Student A left campus on XXXX,
2011, immediately after filing her complaint, the Senior Associate Dean communicated with her
and her family via e-mail and phone to determine what measures should be in place upon her
anticipated return on XXXX, 2011. In an XXXX, 2011 e-mail, the Senior Associate Dean
notified Student A’s instructors that she would be off campus so that she would not be penalized
for her absence. On XXXX, 2011, the University issued no-contact orders to both Student A and
C via separate letters. Student A’s letter also noted that the Student Development Office had
resources to support her during what could be an “emotionally tolling experience,” though it
made no specific offers of counseling or other assistance. The letter to Student C also cautioned
him not to retaliate in any form. Upon Student A’s return to campus, the University also
implemented interim measures, including taking steps to minimize the possibility that Student A
would encounter Student C on campus while taking into consideration Student C’s schedule and
access to his classes; and providing Student A with an escort to XXXX.
The University asserted to OCR that the city police department requested that Student A and her
parents make a decision about pursuing criminal action regarding her complaint; this was
documented in the Assistant Chief’s police report entry of XXXX, 2011, which was provided to
OCR. In an e-mail communication to the University on the same day, Student A’s parent
inquired about the University’s ability to suspend its investigation while the parents explored
steps to support a potential criminal complaint. The University responded that it was concerned
that accommodating such a request could create due process problems because they needed to
timely notify Student C that a complaint had been filed against him. In another internal e-mail,
dated XXXX, 2011, from Coordinator 1 to Student A’s parent, Coordinator 1 explained that if
Student A wished to pursue the criminal complaint, then “essentially, the complainant is opting
not to use the university’s internal assisted resolution process,” and “if that is the case, we will
defer to [the city police department] and will not take further action on our end until the criminal
investigation is complete.” According to Student A’s parent, on XXXX, 2011, the Senior
Associate Dean advised Student A and her parent that the University would not move forward
with adjudication of her complaint if she had filed a criminal complaint. Police records
documented that Student A contacted city police on XXXX, 2011, and indicated that she did not
wish to file a criminal complaint.
According to the University, because Student A declined to file criminal charges, the University
moved the complaint forward. The Senior Associate Dean informed OCR that at the onset of the
investigation she spoke with Student A’s parent about proceeding under the formal complaint
process and that the parent expressed interest in pursuing assisted resolution. However, the
University rejected a condition of the terms proposed by Student A’s parent for assisted
resolution. Coordinator 1 issued a letter to both parties stating that following an unsuccessful
attempt at resolving the complaint “through the University’s direct resolution process” on
XXXX, 2011, Student A requested the complaint be resolved through adjudication. The
University continued its investigation in order to gather evidence for a formal adjudication
proceeding. Coordinator 1 identified one faculty member to chair the hearing panel, who
selected from members of the SCGB to compose a panel to hear Student A’s complaint, including
three faculty and staff members and one student. In letters to Students A and C, the Senior
Associate Dean identified two SCGB members assigned to serve as advisors for Students A and
C. The hearing was scheduled for XXXX, 2011.

 Page 14 – David A. Campbell, Esq.
OCR reviewed records related to the investigation, which indicate that the Senior Associate Dean
conducted separate informal meetings with Student A and Student C to discuss the complaint and
the investigation and adjudication process, and that the Senior Assistant Dean and the Assistant
Chief jointly conducted separate initial and follow-up interviews with Student A and Student C,
as well as total of XXXX student witnesses identified by Student A, Student C, and the hearing
panel. Separately, the Assistant Chief spoke with XXXX in an attempt to obtain footage from
security video and attempted to obtain videos from surrounding cameras; however, no video
footage was available. Both the Senior Associate Dean and the Assistant Chief informed OCR
that they reviewed text messages between Student A and Student C and also listened to a taped
telephone conversation between the students. In addition, the day Student A filed her complaint,
the Senior Associate Dean arranged for the University police to pick up Student A’s clothing
from the night of the incident and the bedding from XXXX. The Senior Associate Dean stated
that to her knowledge, neither the clothing nor the bedding was tested for evidence.
The investigative report was provided to both students on XXXX, 2011. The same day, Student
A requested that the hearing format be modified to permit her to be in a separate room from
Student C. OCR reviewed correspondence between the University and Student A’s family and
notes that there was a notation as to medical documentation but found it was not possible to
determine whether the discussion of medical documentation was in reference to the hearing
format or to the hearing. Student A was granted a modified hearing format on XXXX, 2011.
The day before the hearing, Student A’s parents raised the concern that the investigative report,
which had previously been reviewed by Coordinator 1 and University legal counsel, referenced
Student A’s previous unrelated sexual history, and asked for the report to be revised. Although
the materials had already been provided to the panel, the Senior Associate Dean told OCR the
University immediately removed the reference and that the hearing chair stated at the hearing
that this reference should be disregarded.
On XXXX, 2011, Student A and Student C participated in a hearing before the hearing panel.
The panel issued findings five days after the hearing. The panel found that it “did not have
enough evidence to determine whether sexual contact, intercourse or otherwise, took place on
XXXX, 2011, let alone sexual assault.” The panel therefore concluded that the preponderance of
the evidence did not support that Student C had violated the University policy prohibiting sexual
assault.
Written notice of the outcome was issued to both parties five days after the hearing, along with
notice of their right to appeal. The report provided an overview of the proceedings, including a
description of the complaint; detailed the evidence considered by the hearing panel; explained
that both students had the right to appeal the decision; and noted that there had been an
unsuccessful attempt at assisted resolution. The letter also provided both parties with notice of
available counseling resources on campus.
Student A appealed the University’s decision on XXXX, 2011, raising concerns that the panel
improperly considered her sexual history and that the University did not test her clothing or
XXXX bedding even though it had collected them and the University did not consider text
messages between the students the day after the alleged assault. Additionally, Student A asserted

 Page 15 – David A. Campbell, Esq.
that her right to a fair and impartial hearing was violated because the hearing panel members
lacked training and “essential qualifications.” Student A received a written denial of the appeal
on XXXX, 2011. The Dean of Students, who responded to the appeal, addressed Student A’s
concern that information regarding her sexual history was initially included in the hearing
packet, by stating that such information was not solicited by the investigators, but rather was
volunteered by Student A, and was removed from the packet to her satisfaction prior to the
hearing. The Dean of Students also noted that all panel members had prior experience with such
hearings and were trained in the University’s policies, legal standards, and evidentiary standards.
OCR interviewed the hearing panel members regarding the types and frequency of trainings they
received. Some members recalled receiving extensive training upon being selected for the
SCGB, but did not recall recent SCGB board-specific trainings. They stated that their most
recent sexual harassment training had been the annual University employee online training.
Other panel members told OCR they had received recent and annual trainings on sexual
harassment. The student member4 stated that once appointed to the board, she was asked to
complete online training through the University website on the basics of sexual assault. All
panel members recalled receiving the SCGB manual and stated they had received some training
on the manual. The SCGB manual contained guidance on the responsibilities of investigators,
hearing panel members, hearing advisors, and the Associate Vice President of Human Resources,
as well as on investigating complaints, interviewing parties, assessing credibility, making
determinations, and instituting sanctions. The manual also stated that the University uses the
preponderance standard and provided a definition. OCR also noted that the University’s original
policies and procedures provided that the hearing advisor’s role was “to listen and provide
general information about the hearing process” and interviews with University officials
confirmed that the hearing advisors were expected to explain the process to the students
generally, but they were not to give legal advice.
Student A withdrew from the University on XXXX, 2011.
o Analysis
The investigation and hearing process was prompt, as they were completed within 25 days of
when the complaint was filed. OCR determined, however, that the University’s response to
Student A’s complaint was not equitable. The evidence revealed that University staff requested
that the family make a decision between pursuing criminal charges or proceeding through the
University’s complaint process, which is consistent with the University’s original policies and
procedures in effect at the time that stated the University complaint process could terminate if
there were criminal proceedings involving the same conduct. However, as noted above, a
criminal investigation into allegations of the same sexual conduct does not relieve the University
of its duty under Title IX to resolve complaints promptly and equitably.

4

Although Title IX does not prohibit student participation on hearing panels, the use of students on panels is
discouraged.

 Page 16 – David A. Campbell, Esq.
Consistent with the University’s original policies and procedures in effect at the time, the
University’s internal communications indicate that the Title IX Coordinator took the position that
Student A’s complaint of sexual assault could be addressed through the University assisted
resolution process, the first step of its formal complaint process. As discussed above, however,
mediation of complaints of alleged sexual assault is never appropriate.
The University also included information regarding Student A’s sexual history in the
investigative report, which was reviewed by the Title IX staff prior to being provided to the
panel. While the University removed the materials prior to the start of the hearing, the hearing
panel members had already received the report. Furthermore, when Student A raised the matter
on appeal, the University took the position that Student A’s volunteering of the information
during the University’s interviews excused its inclusion of the information in the documents
provided to hearing officers. The inclusion of Student A’s sexual history in the report reviewed
by the SCGB created a danger of unfair prejudice to Student A in the adjudication of her
complaint.
Although Student A asserted that hearing panel members lacked training and essential
qualifications, OCR found that all the SCGB members hearing Student A’s complaint received
training to participate in the panel. All of the panel members received the SCGB manual that
provides guidance regarding their responsibilities as adjudicators, as well as training on the
manual.
Accordingly, OCR finds that the University failed to provide an equitable process to Student A,
in violation of 34 C.F.R. § 106.8(b).


Student B (OCR Docket #15-13-2141)

On April 10, 2013, a complaint was filed with OCR alleging that the University failed to respond
promptly and equitably to a complaint that Student B, a XXXX student, had been sexually
assaulted XXXX on XXXX, 2012. On XXXX, 2012, Student B filed a formal complaint with
the University regarding the assault. In her complaint to OCR, Student B specifically alleged
that the University failed to conduct a prompt investigation by waiting to interview students who
were at XXXX until two months after the alleged sexual assault, failed to interview all possible
witnesses, and failed to provide appropriate interim measures.
o OCR’s Findings
According to OCR’s interviews and review of the investigative file, Student B attended XXXX
on XXXX, 2012, at a University-owned property XXXX. Between approximately XXXX, 2012,
campus police were called to the XXXX and Student B was transported by officers with the city
police department to the local hospital, where she was treated for “acute alcoholic intoxication.”
Student B reported that she blacked out and some point during XXXX and had no recollection of
the later parts of evening. After returning to XXXX and changing her clothes, Student B
suspected that she had been sexually assaulted while at XXXX and returned to the hospital that
afternoon. The hospital collected a rape kit from Student B that was turned over to the city
police department. Based on reports from campus police, the University immediately initiated

 Page 17 – David A. Campbell, Esq.
an investigation into violations of the University’s alcohol policy at XXXX that evening and the
alleged sexual assault of Student B. According to information provided by the University, the
rape kit results were completed on XXXX, 2012 and confirmed evidence of sexual intercourse.
The University’s then interim dean of students (Coordinator 3) told OCR that, upon being
notified of the alleged assault, she attempted to meet Student B at the hospital and ultimately
spoke with her in XXXX the morning following the incident, on XXXX, 2012, at which point
they scheduled a time to meet the following day. Coordinator 3 told OCR that she spoke with
Student B about the information Student B recalled from XXXX, the University’s procedures for
filing a sexual assault complaint, information regarding resources available on campus for sexual
assault victims, including information on counseling services and a local community resource
center, and confidentiality in on-campus counseling. Student B’s and Coordinator 3’s reports of
these meetings are consistent.
Although Student B reported to OCR that the University did not affirmatively state to her that
she had the option to leave campus, she decided to return to XXXX on XXXX, 2012, and
returned to campus on XXXX, 2012. On the same day she returned, Student B was interviewed
by Coordinator 3 and the Senior Associate Dean. At that time she told the University
investigators that she felt she may have been drugged the night of the incident.
The files provided by the University indicate that on XXXX, 2012, the Senior Associate Dean
sent an e-mail to Student B’s instructors to inform them that she was dealing with “a significant
trauma” and asked that they provide any support to her that they could during XXXX that week.
The e-mail notes that the University encouraged Student B to take a break from school.
According to the University, the Senior Associate Dean and Coordinator 3 interviewed XXXX
students between XXXX, 2012 and XXXX, 2012, including witnesses identified by Student B as
XXXX. Based on information they learned through these student interviews, the University
interviewed XXXX additional students and re-interviewed three students in XXXX 2013. The
Senior Associate Dean explained to OCR, and Coordinator 3 confirmed, that they did not
interview all of the individuals who attended XXXX regarding the alleged assault because,
during a separate investigation into violations of the University’s alcohol policy, it was
determined that several students had left XXXX before the time period Student B identified as
when she blacked out.
OCR reviewed the transcripts from the University’s interviews with the XXXX students. Many
witnesses reported being intoxicated and/or not recalling the specific details from the evening.
XXXX. The University and Student B reported to OCR that this male student voluntarily
provided a DNA sample to the city police department. Student B later reported to the University
that the student’s DNA was not a match to the DNA collected from the rape kit. After numerous

 Page 18 – David A. Campbell, Esq.
interviews and DNA testing of another male student, whose DNA did not match the rape kit
DNA, in XXXX 2013, the city police informed Student B it was not moving forward with the
case.
The Senior Associate Dean and Coordinator 3 explained to OCR that in Student B’s case they
could not make a determination or complete their investigation of Student B’s complaint because
they could not identify a potential assailant. On XXXX, 2013, the Senior Associate Dean
notified Student B in writing that the University could not proceed any further with its
investigation due to the lack of any additional evidence to identify an assailant at the time. The
letter included a description of Student B’s allegation and the steps the University took to
investigate her complaint and also explained that, should actionable information be brought to
the University’s attention, it would resume its investigation of her complaint. The letter did not
provide Student B any information on resources or other supports.
Student B completed the fall semester and then withdrew from the University.
o Analysis
With regard to Student B, OCR finds that University did not provide an equitable grievance
process to Student B, in violation of Title IX and its implementing regulation at 34 C.F.R.
§ 106.8(b).
The University’s investigation process primarily focused on identifying a respondent and the
University failed to assess whether Student B was subjected to or continued to be subjected to a
sexually hostile environment. As such, even though it had notice the alleged assault as of
XXXX, 2012, and knew within a few days that Student B XXXX XXXX 2012, the investigative
file indicates that the University did not contact Student B’s instructors until XXXX, 2012.
Moreover, the file does not provide any records indicating that the University provided other
interim measures or individual remedies to Student B, except to offer counseling services during
the initial phases of the investigation. The file does not evidence that any other remedies or
measures, such as campus escorts, academic assistance, or broader measures, such as specific
training for the XXXX on sexual harassment/sexual assault, were considered or provided to
support a safe environment on campus.
The University’s processing of Student B’s complaint spanned 86 days. Although the University
received notice of the alleged assault on XXXX, 2012, it did not interview any students who
were present at XXXX until 22 days later, on XXXX, 2012. The University’s delay in
interviewing potential witnesses is a deficiency with respect to meeting its Title IX obligation,
upon receiving notice of possible sexual harassment or sexual violence, to take immediate action
to investigate or otherwise determine what happened.


University Complaints filed by Students E, F, and G
o Student E’s Complaint

 Page 19 – David A. Campbell, Esq.
On XXXX, 2016, Student E filed a complaint with the University police alleging that she had
been sexually assaulted on XXXX, 2016. The University police immediately notified the
University’s Title IX Coordinators and the University initiated its investigation on XXXX, 2016.
Student E also filed a formal Title IX complaint with the University on XXXX, 2016. In her
complaint to the University, Student E alleged that Student D had made repeated sexual advances
to her on XXXX, 2016, which she repeatedly refused. Student E alleged that later that day,
XXXX, Student D sexually assaulted her. Student E informed University police and University
investigators that she knew of another female student (Student G) who had been similarly
assaulted by Student D XXXX.
OCR interviewed the Deputy Title IX Coordinator. She reported that on XXXX, 2016, the
Interim Dean of Students met individually with Student D and Student E and then he conferred
with her. On XXXX, 2016, the University sent Student D and Student E correspondence
directing that they have no contact with each other. XXXX. Other than receipt of Student E’s
complaint, the investigative file did not reflect that the University had conducted any
investigation that would support its decision to XXXX.
On XXXX, 2016, Student E was interviewed by University investigators and she identified
XXXX witnesses. XXXX. However, XXXX submitted a list of witnesses. From XXXX, 2016,
through XXXX, 2016, University investigators interviewed XXXX witnesses.
o Student F’s Complaint
According to the University’s interview notes, on XXXX, 2016, after hearing about the other
incident involving Student E, Student F filed a complaint with the University alleging that
XXXX, Student D made several sexual advances that she rebuffed. XXXX.
The investigative file for Student F’s complaint contained no documentation concerning whether
the University offered or provided interim measures to Student F. On XXXX, 2016, the
University issued a letter to both Student F and Student D informing them that it was opening an
investigation. The letter contained no reference to interim measures, no-contact orders, or other
assistance available to either party. Student F provided the names of XXXX witnesses, XXXX
of whom was interviewed. XXXX; there is no documentation that she

 Page 20 – David A. Campbell, Esq.
was interviewed with respect to Student F’s allegations. XXXX. XXXX provided the names of
XXXX witnesses. The University interviewed XXXX, as XXXX refused to participate.
o Student G’s Complaint
On XXXX, 2016, Student G filed a formal complaint with the University police. She stated that
XXXX because Student D was sexually assaulting her. XXXX
On XXXX, 2016, Student G was interviewed by University staff. XXXX. XXXX provided the
names of three witnesses to the University and they were interviewed between XXXX, 2016 and
XXXX, 2016. The University’s investigative file for Student G’s complaint does not indicate
that University offered or provided any interim measures. During this same time period, the
University interviewed witnesses in Student F’s file as well.
o The University’s Response
On XXXX, 2016, the University separately informed the Students E, F, and G, and Student D of
the charges it was filing against Student D in each matter. The correspondence also set a hearing
date of XXXX, 2016. The charges against Student D were as follows:
Student E-- XXXX.
Student F-- XXXX.
Student G-- XXXX.
On XXXX, 2016, the University also provided the parties with a redacted copy of the
investigative reports, the names of the hearing board members, notice that the hearing board
procedures are detailed in the Student Handbook, and an outline of the parties’ rights and
responsibilities. It also stated that University proceedings are distinct and separate from Ohio
civil and criminal proceedings that there is not a right of confrontation and cross-examination,
and provided notice that a preponderance standard would be used. It also provided information
about the provision of an advisor and the role that an advisor could play.
On XXXX, 2016, Student D withdrew from the University.
On XXXX, 2016, the hearing for all three complaints involving Student D went forward. The
panel for the hearing consisted of XXXX (who served as the chair of the hearing); and a student.
The hearing panel report states the evidence that was considered included the incident report
submitted by Students E, F, and G and the investigative reports in all three cases; testimony from
Students E, F, and G; witness reports; and text messages sent by XXXX. The report identified
that the panel considered whether consent was obtained and the evidentiary standard that was
used was the preponderance standard. The hearing panel report found Student D responsible on
all charges made against him by Students E, F, and G.

 Page 21 – David A. Campbell, Esq.
The University XXXX. The University also determined that XXXX. The University’s files
indicate that XXXX Finally, Student D was told not to contact Students E, F, and G, and
Students E, F, and G were told not to have any further contact with Student D.
On XXXX, 2016, a letter was issued to Students D, E, F, and G that included the hearing panel
report of XXXX, 2016. This letter included notice of the right of appeal and stated that any
appeals should be filed within three days. On XXXX, 2016, Students E, F, and G were informed
that no appeal had been filed and that the findings and sanctions in the letter of XXXX, 2016
remained in effect.
The files for all three of the complaints do not indicate that any interim measures other than a
no-contact order in the file pertaining to XXXX, and a reference by the hearing panel to a
continuation of a no-contact order with respect to XXXX. They do not document that any
remedies were provided for any of the three XXXX students other than the final no-contact
orders or that the University assessed whether any remedies were necessary for the University
community. There is no indication that the University made an assessment as to whether there
was a hostile environment. According to the Deputy Title IX Coordinator and Coordinator 3, the
University provided Students E, F, and G with remedies they requested.
o Analysis
The investigation and hearing process was prompt as the University learned of the first allegation
on XXXX, 2016, and all three complaints were processed as of XXXX, 2016. However, OCR
noted deficiencies in the investigation and hearing process for Student D, as well as for Students
E, F, and G. OCR would have to conduct further investigation in order to make a finding with
regard to the University’s handling of these complaints.
Based on OCR’s review of the investigative file for Student E’s complaint, there was no
indication that the University conducted a sufficient level of inquiry regarding Student E’s
allegations made on XXXX, 2016, before XXXX on XXXX, 2016. XXXX.
In addition, the investigative files for the three complaints do not document any interim measures
for Students E, F, and G, other than an initial no-contact order in one of the files and mention of a
continuation of a no-contact order in another file. The files also do not document any remedies
for Students E, F, and G after the University’s violation finding, other than the no-contact order
that was imposed after the hearing. The files also do not indicate that University made an
assessment as to whether there was a hostile environment and, if so, took steps to eliminate it for
the Students E, F, and G. In addition, the files do not indicate whether the University assessed
whether remedies were appropriate for the University community.


Other complaints of sexual harassment and sexual violence filed under the
University’s grievance process

The original policies and procedures state that “all records of complaints will be kept in a
separate file from other university records.” OCR reviewed the investigative files that the
University produced in response to its requests for copies of the complete investigative files for

 Page 22 – David A. Campbell, Esq.
any sexual harassment or sexual assault matters. Specifically, OCR reviewed 43 University
investigative files, in addition to files for Student A and Student B, which involved incidents
from academic year 2010-2011 through February 2014. Of these files, 21 alleged sexual assault
and 12 were adjudicated. The respondents were found in violation of University policy in six of
the 12 adjudicated cases.
OCR notes several deficiencies regarding the investigative files. Many files lacked
documentation as to whether the University assessed whether a hostile environment existed for
the student and, if so, whether any steps were taken to eliminate it and prevent recurrence of the
harassment, including, where appropriate, taking steps to protect the broader university
community. OCR also noted that while many files documented no contact orders, many
contained little or no documentation regarding any other interim measures or academic
assistance.
Below are some examples:


Following investigation and adjudication in 2010, a male student athlete was found
responsible for non-consensual sexual contact and dismissed from campus. The
investigative file did not indicate that the complainant was provided with notice of the
outcome or any remedies.



In a 2010 complaint, a female student reported that she had been sexually assaulted in her
dorm room by a male student while she was unable to consent. There was no evidence in
the file that the University conducted an investigation; the complaint form indicated that
it was resolved through assisted resolution.

 Page 23 – David A. Campbell, Esq.


Assisted resolution was pursued in a complaint in 2012 in which a female student
reported that following attendance at a University sporting event with two male students
and a third non-student male, she was physically assaulted and sexually harassed in the
dorm room of one of the male students.

Training
The documentation that the University provided to OCR and its publically available 2015 Annual
Campus Safety and Security Report indicate that the University has provided the following Title
IX training: student orientation as of the 2013-2014 academic year includes a segment titled “Not
Without Consent,” facilitated with the assistance of numerous student development staff and
representatives from the local women’s center; new members to fraternities and sororities
received “Greek 101” training in October 2013 and in March 2014; a training was provided to all
members of a specific fraternity in November 2013; an online educational module was
implemented for all students and employees on, in relevant part, sexual misconduct and Title IX;
as of the 2014-2015 year, annual training, including topics about prevention, awareness, risk
reduction, and identification of sexual assault, was provided to all advocates, investigators,
hearing officers, panelists, and appeals officers; in 2015 and 2016 a training was provided for
first-responders and University police officers; and in February 2016 the University provided a
training for athletic coaches. Additionally, the Director of Student Conduct/Deputy Title IX
Coordinator collaborated with the Assistant Athletic Director to provide a number of trainings on
alcohol, drugs, and sexual misconduct for orientation for all sports teams. As noted above, the
hearing panel members also received training regarding Title IX and the University’s
adjudication process.
Campus Climate
The University hired additional Title IX investigative staff in 2014, revised its investigative and
conduct processes in 2012 and 2014, and implemented a campus-wide awareness campaign
against sexual assault in 2015. In addition, the University received state grants in 2016 to
improve education programming and has improved resources and supports for victims of sexual
harassment and assault, including offering a free legal clinic for survivors of sexual assault and a
year-long support group for female students called Women Supporting Women. According to the
University, as of January 2016, it reinstituted a task force from 2013 of a variety of constituents
from across the campus community.
The University reported that it also conducted surveys in 2014, 2015, and 2016 to assess the
campus climate with regard to sexual harassment and sexual violence and subsequently
developed and implemented actions to improve the climate at the University. The surveys
solicited anonymous responses from students on issues such as experiences of sexual harassment
or assault, knowledge of and confidence in reporting avenues, and effectiveness of University
education programming around sexual assault.
The University provided OCR documentation that the results of the climate surveys were used in
2016 as part of the University’s five-year strategic planning process, including development of
additional or refinement of existing training. The University reported that it reconstituted its

 Page 24 – David A. Campbell, Esq.
Title IX advisory committee in response to the climate assessment results. In February 2017, the
University provided documentation to OCR showing it is in the process of preparing another
climate assessment for later in 2017.
Conclusion and Resolution
In summary, OCR found that the University:
1) from the 2010-2011 academic year through March of 2017, failed to provide an
appropriate notice of nondiscrimination in violation of 34 C.F.R. § 106.8(a);
2) for the 2010-2011 academic year, failed to designate a Title IX Coordinator in
violation of 34 C.F.R. § 106.9(a);
3) from the 2010-2011 academic year through March 2017, failed to notify students
and employees of the identity of the Title IX coordinator in violation of 34 C.F.R.
§ 106.8(a);
4) from the 2010-2011 academic year through the 2013-2014 academic year, failed
to provide grievance procedures, as written and as applied, that complied with 34
C.F.R. §§ 106.8(b) and 106.31 because mediation was permitted in matters related
to sexual assault;
5) from the 2010-2011 through the 2013-2014 academic year, failed to provide
grievance procedures that complied with 34 C.F.R. §§ 106.8(b) and 106.31
because third parties were not properly covered;
6) from the 2010-2011 through the 2011-2012 academic year, failed to provide
grievance procedures that complied with 34 C.F.R. §§ 106.8(b) and 106.31
because termination of proceedings were permitted if the same matters were
under criminal investigation;
7) from the 2010-2011 academic year through March 2017 failed to provide
grievance procedures that complied with 34 C.F.R. §§ 106.8(b) and 106.31
because not all forms of sex discrimination were covered.
In addition, OCR noted a deficiency, based on its review of sexual assault investigative files
from the 2010-2011, 2011-2012, and 2012-2013 academic years, in providing students with
interim measures or notices of determinations. Further, OCR noted deficiencies in the
investigation and hearing process for Student D, as well as for Students E, F, and G.
On March 7, 2017, the University signed a resolution agreement, a copy of which is enclosed
herewith, which, when fully implemented, is intended to address the Title IX violations OCR
identified during its investigation and the portion of OCR’s investigation that has not yet
concluded concerning the University’s response to other students’ complaints. Under the terms
of the Agreement, the University will:


Review the complaints of rape the University received from academic year 2010-2011
through fall semester 2013 to determine whether the University responded promptly and
equitably and take appropriate remedial steps to correct any violations.

 Page 25 – David A. Campbell, Esq.


Review all complaints of sexual harassment and sexual violence the University received
from spring semester 2014 through academic year 2015-2016 to determine whether the
University responded promptly and equitably and take appropriate remedial steps to
correct any identified violations.



Submit to OCR for review documents pertaining to the University’s handling of
complaints of sexual harassment and sexual violence for academic years 2016-2017,
2017-2018, and 2018-2019.



Revise the University’s Title IX policies and procedures to ensure that they provide for
the prompt and equitable processing of complaints of sex discrimination, and revise the
University’s website, publications, and other materials for addressing complaints of sex
discrimination.



Ensure that the University annually assesses the effectiveness of its efforts to address sex
discrimination, and ensure that the University maintains sufficient records with respect to
complaints received under Title IX.



Continue to provide annual training regarding the University’s obligations pursuant to
Title IX to members of the University community, including instruction on how to
conduct adequate, reliable and impartial investigations and the right of students to pursue
simultaneously a criminal charge with law enforcement and a Title IX complaint with the
University.



Offer to reimburse Student A and Student B for counseling services for a period of up to
one year, capped at $2,000 each.



Publish a notice of nondiscrimination that is compliant with Title IX.

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
specific terms and obligations of the Agreement. Before initiating administrative enforcement
(34 C.F.R. §§ 100.9, 100.10), or judicial proceedings to enforce the Agreement, OCR shall give
the University written notice of the alleged breach and sixty (60) calendar days to cure the
alleged breach.
This letter 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
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 complainants may have the right to file private suits 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. If this happens, individuals may file complaints alleging such treatment.

 Page 26 – David A. Campbell, Esq.
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.
Should you have any questions about this letter, please contact Supervisory Attorney/Team
Leader Donald S. Yarab at (216) 522-7634. We look forward to receipt of the University’s first
monitoring report by June 30, 2017. For questions about the monitoring, please contact OCR
Senior Equal Opportunity Specialist Sarah Poppleton, who will be overseeing the University’s
implementation of the Agreement, at (216) 522-2674 or at Sarah.Poppleton@ed.gov.
Sincerely,
/s/
Meena Morey Chandra
Regional Director
Enclosure