UNITEDSTATESDEPARTMENT OF EDUCATION OFFICE FOR CML RIGHTS REGIONVI ARKAN SAS LOUISIANA MISSISSIPPI 1999 BRYAN ST., SUITE 1620 DALLAS, TX 75201-6810 TEXAS July 25, 2017 Re: OCR Case No. 06172002 b6; b7A; b7C Via First Class Mail and Email... r_'67_A'_6 7C __________ _ Dearr6;b7A;b7C This letter is to inform you that the U.S. Department of Education (Department), Office for Civil Rights (OCR), Dallas Office, has opened for investigation a complaint filed on your behalf of against Southern Arkansas Universi SAU or University), Magnolia, Arkansas. 6 alleged that the University was The complaint, which OCR received b ; b?A;b?C discriminated against you on the basis of sex by the University when it failed to adopt compliant Title IX grievance procedures and failed to promptly and equitably respond to a complaint that you filed with the University regarding an incident of on campus sexual violence, during the!b6; b?A;b?C !academic year. You further allege that the University retaliated against you (Student). OCR is responsible for enforcing Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681, et seq., and its implementing regulation at 34 C.F.R. Part 106, which prohibit discrimination on the basis of sex in any education program or activity receiving Federal financial assistance. Additionally, the regulation implementing Title IX, at 34 C.F.R. § 106.71 , incorporates by reference 34 C.F.R. § 100.7(e) of the regulation implementing Title VI of the Civil Rights Act of 1964, which provides that: No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by [regulations enforced by OCR] or because [one] has made a complaint, testified , assisted, or participated in any manner in an investigation, proceeding or hearing under this part. The University is a recipient of Federal financial assistance from the Department. Therefore , OCR has jurisdictional authority over the University to process this complaint for resolution under Tit le IX. Please note that opening an investigation in no way implies that OCR has made a determination regarding its merits. During the investigation, OCR is a neutral fact finder , collecting and analyzing relevant evidence from the complainant, the recipient and other The Departm ent of Education's miss ion is to promote student achi eveme nt and preparation for global competitiveness by .fostering ed ucational ex ce/Jen ce and ensuring eq ual access. www .ed.gov Page 2 -r6;b7A;b7C sources, as appropriate. OCR will ensure that its investigation is legally sufficient and is dispositive of the allegations, in accordance with the provisions of OCR's Case Processing Manual. OCR will investigate the following issues: I . Whether the University discriminated against the Student on the basis of sex by failing to respond promptly and equitably to sexually harassing conduct (on campus sexual assault) by other students, which was sufficient to constitute a hostile envirorunent r and of which it had notice (knew or should have known) during thtjb6 ; b?A; b?C _ academic year, in violation of Title IX, at 34 C.F .R. §§ I 06.8 and 106.31; and 2. Whether the University retaliated against the Student by taking a series of adverse actions against her , during thdb6 ; b?A;b?C !academic year,because the Student 66 67 ! ' A' b7C !Title IX grievance process, in violation of the Title IX implementing regulation, at 34 C.F.R. § 106.71. Complaints may be resolved prior to the conclusion of an investigation in two ways. First, Early Complaint Resolution (ECR) allows the parties (the complainant and the institution that is the subject of the complaint) an opportunity to resolve the complaint allegations quickly , generally soon after the complaint has been opened for investigation . If both parties are interested, and if OCR determines that ECR is appropriate, OCR will facilitate settlemen t discussions between the parties and work with the parties to help them understand the legal standards and possible remedies . Second, complaints may also be resolved before the conclusion of an investigation if the institution that is the subject of the complaint (recipient) expresses an interes t in resolving the complaint. This process is voluntary and must be requested by the recipient. OCR must determine that it is appropriate to resolve the complaint during the course of an investigation. If the voluntary resolution process has been determined appropriate, OCR will notify the complainant of the recipient ' s interest in resolving the complaint . The resolution agreement is negotiated between OCR and the recipient and will be aligned with the complaint allegations, issues investigated, and information obtained during the investigation. A copy of the signed resolution agreement will be included with the resolution letter. OCR will then monitor the implementation of the resolution agreement. 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, that individual may file a complaint alleging such treatment . Under the Freedom oflnformation Act, it may be necessary to release this document and related correspondence and records upon request. In the event that OCR receives such a request, it will seek to protect, to the extent provided by law, personally identifiab le information which, if released, could reasonably be expected to constitute an unwarranted invasion of personal privacy. Page 3 - lL-----------' b6 ; b7A; b7 C If you have any questions or concerns about this letter, please contact me at (214) 661-9680 or natasha .rojas @ed.gov, or you may contact my Supervisory Attorney/Team Leader, Ms. Adriane Martin , at 214-661-9678 or adricme.martin@ed.gov. Sincerely, Natasha Gonzalez RoJas Senior Attorney Office for Civil Rights Dallas Office UNITEDSTATESDEPARTMENT OF EDUCATION OFFICE FO R CIVIL RIGHTS 1999 BRYANST., SUITE 1620 DALLAS,TX 75201-6810 REGIONVI ARKANSAS LOUISIANA MIS5fSSWPI T EXAS July 25, 2017 Re: OCR Case No. 06172002 Dr. Trey Berry, President Southern Arkansas University 100 E. University Magnolia, Arkansas 71753-5000 Via First Class Mail and Email (TreyBerry @sa umag.edu) Dear Dr. Berry: This letter is to inform you that the U.S. Department of Education (Department), Office for Civil Rights (OCR), Dallas Office, has opened for investigation a complaint filed against Southern Arkansas University (SAU or University). The complaint, which OCR received!b6;b?A;b7C l~~cb?A; alleged thata formerSAU student(Student)was discriminated againston th ...-e ... b-as""'i_s _o"'"f-s e_x_ ____. by the University when it failed to adopt compliant Title IX grievance procedures and failed to promptly and equitably respond to a complaint that she filed with the University regarding an incident of on campus sexual violence, during th~b6; b?A;b?C !academic year. The Student further alleged that the University retaliated against her. I OCR is responsible for enforcing Title IX of the Education Amendments of 1972 (Title IX) , 20 1 U.S.C. §§ 1681, et seq, and its implementing regulation, at 34 C.F.R. Part 106, which prohibit discrimination on the basis of sex in any education program or activity receiving Federal financial assistance. Additionally, the regulation implementing Title IX, at 34 C.F.R. § 106.71, incorporates by reference 34 C.F.R. § 100.7(e) of the regulation implementing Title VI of the Civil Rights Act of 1964, which provides that: No recipient or other person shall intimidate , threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by [regulations enforced by OCR] or because [one] has made a complaint, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this part. The University is a recipient of Federal financial assistance from the Department. Therefore, OCR has jurisdictional authority over the University to process this complaint for resolution under Tit le IX. Please note that opening an investigation in no way implies that OCR has made a determination regarding its merits. During the investigation, OCR is a neutral fact finder, collecting and analyzing relevant evidence from the complainant, the recipient and other sources, as appropriate. OCR will ensure that its investigation is legally sufficient and is dispositive of the allegations , in accordance with the provisions of OCR's Case Processing Manual. The Dep,1rtmentof Education~ mission is to promote student achievementand preparationfor global competitiveness by fostering educalionalexcellenceand ensuring equalaccess. www.ed.gov Page 2 - Dr. Trey Berry, President OCR will investigate the following issues: 1. Whether the University discriminated against the Student on the basis of sex by failing to respond promptly and equitably to sexually harassing conduct (on campus sexual assault) by other students, which was sufficient to constitute a hostile environment, and of which it had notice (knew or should have known) during the!b6; b?A; b?C academic year, in violation of Title IX, at 34 C.F.R. §§ 106.8 and 106.31; and ! 2. Whether the University retaliated against the Student by taking a series of adverse actions against her, during thdb6; b?A;b?C academic year, because the Student j66' 67A' b7C !Title IX grievance process, in violation of the Title IX implementing regulation, at 34 C.F.R. § 106.71. I The Title IX regulation, at 34 C.F .R. § 106.71, incorporates by reference the regulation implementing Title VI of the Civil Rights Act of 1964, at 34 C.F.R. § 100.6(b) and (c), which requires that each recipient of Federal financial assistance make available to OCR information that may be pertinent to reach a compliance determination. Pursuant to 34 C.F.R. § 100.6(c) and 34 C.F.R. § 99.3l(a)(3)(iii) of the regulation implementing the Family Educationa l Rights and Privacy Act , OCR may review personally identifiable records without regard to considerations of privacy or confidentiality. We have enclosed an initial request for information that is needed for the investigation of this complaint . Please submit the requested information to OCR within 20 calendar days of the date of this letter. OCR may seek to supplement this information through additional data requests, interviews with University personnel and students, and, an onsite visit. Complaints may be resolved prior to the conclusion of an investigation in two ways: First, Early Complaint Resolution (ECR) allows the parties (the complainant and the institution that is the subject of the compla int) an opportunity to resolve the complaint allegations quickly ; generally , soon after the complaint has been opened for investigation. If both parties are interested , and if OCR determines that ECR is appropriate, OCR will facilitate settlement discussions between the parties and work with the parties to help them understand the legal standards and possible remedies. Second , complaints may also be resolved before the conclusion of an investigation if the institution that is the subject of the complaint (recipient) expresses an interest in resolving the complaint. This process is voluntary and must be requested by the recipient. OCR must determine that it is appropriate to resolve the complaint during the course of an investigation. If the voluntary resolution process has been determined appropriate, OCR will notify the complainant of the recipient's interest in resolving the complaint. The resolution agreement is negotiated between OCR and the recipient and will be aligned with the complaint allegations, issues investigated , and information obtained during the investigation. A copy of the signed resolution agreement will be included with the resolution letter. OCR will then monitor the implementation of the resolution agreement. For your information, we have enclosed OCR 's Complaint Processing Procedures to provide you with an overview ofOCR's complaint evaluation and resolution processes. Page 3 - Dr. Trey Berry , President 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 file another complaint allegation 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 , it will seek to protect, to the extent provided by law, personally identifiable information, which, if released, could reasonably be expected to constitute an unwarranted invasion of personal privacy. If you have any questions or concerns regarding this matter, you may contact me at (214) 6619680 or natasha.rojas@ed.gov, or you may contact my Supervisory Attorney/Team Leader, Ms. Adriane Martin , at 214-661-9678 or adriane.martin@ed.gov. Sincerely, rX6); (bX7(C) c::::> Natasha Gonzalez Rojas Senior Attorney Office for Civil Rights Dallas Office Enclosures b5: INITIAL DATA REQUEST OCR Case No. 06172002 South?m_Arkamias Universitv 1? SAU or the I Iniverqi?rv?t Page 2 Initial Data Request, OCR Case No. 06172002 b6; MC. Page 3 Initial Data Request, OCR Case No. 06172002 OCRCOMPLAINT PROCESSING PROCEDURES LAWSENFORCED BYOCR OCR enforces the following laws: • • • • • • Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin; Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability; Age Discrimination Act of 1975, which prohibits discrimination on the basis of age; Title II of the Americans with Disabilities Act of 1990, which prohibits discrimination on the basis of disability; Boy Scouts of America Equal Access Act, part of the No Child Left Behind Act of_2001, which prohibits denial of access to or other discrimination against the Boy Scouts or other Title 36 U.S.C.youth groups in public elementary schools, public secondary schools, local education agencies, and state education agencies that have a designated open forum or limited public forum. EVALUATION OFTHECOMPLAINT OCR evaluates each complaint that it receives in order to determine whether it can investigate the complaint. OCR makes this determination with respect to each allegation in the complaint For example, OCR must determine whether OCRhas legal authority to investigate the complaint; that is, whether the complaint alleges a violation of one or more of the laws OCRenforces. OCRmust also determine whether the complaint is filed on time. Generally, a complaint must be filed with OCR within 180 calendar days of the last act that the complainant believes was discriminatory.• If the complaint is not filed on time, the complainant should provide the reason for the delay and request a waiver of this filing requirement OCRwill decide whether to grant the waiver. In addition, OCR will determine whether the complaint contains enough information about the alleged discrimination to proceed to investigation. If OCRneeds more information in order to clarify the complaint, it will contact the complainant; the complainant has 20 calendar days within which to respond to OCR's request for information . OCRwill dismiss a complaint if OCRdetermines that: • • • • • • OCR does not have legal authority to investigate the complaint; The complaint fails to state a violation of one of the laws OCRenforces; The complaint was not filed timely and that a waiver will not be granted; The complaint is unclear or incomplete and the complainant does not provide the information that OCRrequests within 20 calendar days of OCR'srequest; The allegations raised by the complaint have been resolved; The complaint has been investigated by another Federal, state, or local civil rights agency or through a recipient's internal grievance procedures, including due process proceedings, and Complaints that allege discrimination based on age are timely if filed with OCRwithin 180 calendar days of the date the complainant first knew about the allegeddiscrimination. 1 Upda ted February 2015 2 I Page U.S. Department of Education, Officefor CivilRights Complaint Processing Procedures • • the resolution meets OCRregulatory standards or, if still pending, OCRanticipates that there will be a comparable resolution process under comparable legal standards; The same allegations have been filed by the complainant against the same recipient in state or Federal court; The allegations are foreclosed by previous decisions of the Federal courts, the U.S.Secretary of Education, the U.S.Department of Education's CivilRights Reviewing Authority, or OCR policy determinations. OPENINGTHECOMPLAJNT FORINVESTIGATION If OCR determines that it will investigate the complaint, it will issue letters of notification to the complainant and the recipient. Opening a complaint for investigation in no way implies that OCR has made a determination with regard to the merits of the complaint During the investigation, OCR is a neutral fact-finder. OCRwill collect and analyze relevant evidence from the complainant, the recipient, and other sources as appropriate. OCRwill ensure that investigations are legally sufficient and are dispositive of the allegations raised in the complaint. INVESTIGATION OFTHECOMPLAINT OCR may use a variety of fact-finding techniques in its investigation of a complaint. These techniques may include reviewing documentary evidence submitted by both parties, conducting interviews with the complainant, recipient's personnel, and other witnesses, and/or site visits. At the conclusion of its investigation, OCRwill determine with regard to each allegation that: • There is insufficient evidence to support a conclusion that the recipient failed to comply with the law, or • A preponderance of the evidence supports a conclusion that the recipient failed to comply with the law. OCR's determination will be explained in a letter of findings sent to the complainant and recipient Letters of findings issued by OCRaddress individual OCRcases. Letters of findings contain factspecific investigative findings and dispositions of individual cases. Letters of findings are not formal statements of OCRpolicy and they should not be relied upon, cited, or construed as such. OCR's formal policy statements are approved by a duly authorized OCRofficial and made available to the public. RESOLUTIONOF THE COMPLAINT AFTERA DETERMINATION OF NONCOMPLIANCE If OCRdetermines that a recipien~ failed to comply with one of the civil rights laws that OCR enforces, OCRwill contact the recipient and will attempt to secure the recipient's willingness to negotiate a voluntary resolution agreement. If the recipient agrees to resolve the complaint, the recipient will negotiate and sign a written resolution agreement that describes the specific remedial actions that the recipient will undertake to address the area(s) of noncompliance identified by OCR. The terms of the resolution agreement, if fully performed, will remedy the identified violation( s) in compliance with applicable civil rights laws. OCRwill monitor the recipient's implementation of the terms of the resolution agreement to verify that the remedial actions agreed to by the recipient have been implemented consistent with the terms of the agreement and that the area(s) of noncompliance identified were resolved consistent with applicable civil rights laws. 3 I Page U.S.Department of Education, Officefor CivilRights Complaint Processing Procedures If the recipient refuses to negotiate a voluntary resolution agreement or does not immediately indicate its willingness to negotiate, OCRwill inform the recipient that it has 30 days to indicate its willingness to engage in negotiations to voluntarily resolve identified areas ofnoncompliance, or OCRwill issue a Letter of Finding to the parties providing a factual and legal basis for a finding of noncompliance. If, after the issuance of the Letter of Finding of noncompliance, the recipient continues to refuse to negotiate a resolution agreement with OCR,OCRwill issue a Letter of Impending Enforcement Action and will again attempt to obtain voluntary compliance. If the recipient remains unwilling to negotiate an agreement, OCRwill either initiate administrative enforcement proceedings to suspend, terminate, or refuse to grant or continue Federal financial assistance to the recipient, or will refer the case to the Department of Justice. OCRmay also move immediately to defer any new or additional Federal financial assistance to the institution. RESOLUTION OF THE COMPLAINT PRIOR TO THE CONCLUSION OF THE INVESTIGATION Early Complaint Resolution (ECR): Early Complaint Resolution allows the parties (the complainant and the institution which is the subject of the complaint) an opportunity to resolve the complaint allegations quickly; generally, soon after the complaint has been opened for investigation. If both parties are willing to try this approach, and if OCRdetermines that Early Complaint Resolution is appropriate, OCRwill facilitate settlement discussions between the parties and work with the parties to help them understand the legal standards and possible remedies. To the extent possible, staff assigned by OCRto facilitate the Early Complaint Resolution process will not be the staff assigned to the investigation of the complaint. OCRdoes not approve, sign or endorse any agreement reached between the parties as a result of Early Complaint Resolution, and OCRdoes not monitor the agreement. However, if the recipient institution does not comply with the terms of the agreement, the complainant may file another complaint with OCRwithin 180 days of the date of the original discrimination or within 60 days of the date the complainant learns of the failure to comply with the agreement, whichever date is later. Resolution of the Complaint Prior To the Conclusion of an Investigation A complaint may also be resolved before the conclusion of an investigation, if the recipient expresses an interest in resolving the complaint. If OCRdetermines that resolution of the complaint before the conclusion of an investigation is appropriate, OCRwill attempt to negotiate an agreement with the recipient. OCRwill notify the complainant of the recipient's request and will keep the complainant informed throughout all stages of the resolution process. The provisions of the resolution agreement that is reached must be aligned with the complaint allegations and the information obtained during the investigation, and must be consistent with applicable regulations. A resolution agreement reached before the conclusion of an investigation will be monitored by OCR. 41 Page U.S.Department of Education, Office for CivilRights Complaint Processing Procedures APPEALOF OCR'SDETERMINATIONS OCR is committed to a high quality resolution of every case. OCRaffords an opportunity to the complainant to submit an appeal of OCR'sletter finding insufficient evidence of a violation. The appeal process provides an opportunity for complainants to bring information to OCR'sattention that would change OCR's decision. The appeal process will not be a de novo review of OCR'sdecision (i.e., OCRwill not review the matte r as if no previous decision had been rendered). If the complainan t disagrees with OCR'sdecision, he or she may send a written appeal to the Director of the Enforcement Office (OfficeDirector) that issued the determination. If the complainant has documentation to support the appeal, the documentation must be submitted with the complainant's appeal. In an appeal, the complainant must explain why he or she believes the factual information was incomplete, the analysis of the facts was incorrect, and/or the appropriate legal standard was not applied, and how this would change OCR'sdetermination in the case. Failure to do so may result in the denial of the appeal. In order to be timely, an appeal (including any supporting documentation) must be submitted within 60 days of the date of the determination letter. The OfficeDirector may exercise discretion in grantin g a waiver of the 60-day timeframe where: 1. the complainant was unable to subm it the appeal within the 60-day timeframe because of illness or other incapacitating circumstances and the appeal was filed within 30 days after the period of illness or incapacitation ended; or 2. unique circumstances generated by agency action have adversely affected the complainant. A written response to an appeal will be issued. A decision of the Office Director constitutes the agency's final decision. Such a decision will inform the complainant that he or she "may have the right to file a private suit in federal court whether or not OCRfinds a violation." ADDITIONALINFORMATION Right to File a Separate Court Action The complainant may have the right to file suit in Federal court, regardless of OCR's findings. OCR do es not represent the complainant in case processing, so if the complainant wishes to file a court action, he or she must do so through his or her own attorney or on his or her own through the court 's prose clerk's office. If a complainant alleges discrimination prohib ited by the Age Discrimination Act of 1975, a civil action in Federal court can be filed only after the complainant has exhausted administrative remedies. Administrative remedies are exhausted when either of the following has occurred: 1) 180 days have elapsed since the complainant filed the complaint with OCRand OCRhas made no findings; or 2) OCRissues a finding in favor of the recipient. If this occurs, OCRwill promptly notify the complainant and will provide additional information about the right to file for injunctive relief. 5 I Page U.S.Department of Education, Officefor CivilRights Complaint Processing Procedures Prohibition against Intimidation or Retaliation An institution under the jurisdiction of the Department of Education may not intimidate, threaten, coerce, or retaliate against anyone who asserts a right protected by the civil rights laws that OCR enforces, or who cooperates in an investigation. Anyone who believes that he or she has been intimidated or retaliated against should file a complaint with OCR. Investigatory Use of Personal Information In order to investigate a complaint, OCRmay need to collect and analyze personal information such as student records or employment records. No law requires anyone to give personal information to OCRand no formal sanctions will be imposed on complainants or other persons who do not cooperate in providing information during the complaint investigation and resolution process. However, if OCRis unable to obtain the information necessary to investigate a complaint, we may have to close the complaint. The Privacy Act of 197 4, 5 U.S.C.§ 552a, and the Freedom of Information Act (FOIA),5 U.S.C.§552, govern the use of personal information that is submitted to all Federal agencies and their individual components, including OCR.The Privacy Act of 1974 protects individuals from the misuse of personal information held by the Federal government. It applies to records that are maintained by the government that are retrieved by the individual's name, social security number, or other personal identifier. It regulates the collection, maintenance, use and dissemination of certain personal information in the files of Federal agencies. The information that OCRcollects is analyzed by authorized personnel within the agency and will be used by the government only for authorized civil rights compliance and enforcement activities. However, in order to investigate or resolve a complaint, OCRmay need to reveal certain information to persons outside the agency to verify facts or gather additional information. Such details could include the name, age, or physical condition of the person who is the alleged subject of discrimination. Also, OCRmay be required to reveal information requested under FOIA,which gives the public the right of access to records of Federal agencies. OCRwill not release any information about a complainant to any other agency or individual except in the one of the 11 instances defined in the Department's regulation at 34 C.F.R.§ 5b.9(b). OCRdoes not reveal the name or other identifying information about an individual (including individuals who file complaints or speak to OCR)unless (1) such information would assist in the completion of an investigation or for in enforcement activities against an institution that violates the laws, or; (2) unless such information is required to be disclosed under the FOIAor the Privacy Act. OCR will keep the identity of complainants confidential except to the extent necessary to carry out the purposes of the civil rights laws, or unless disclosure is required under the FOIA,the Privacy Act or otherwise by law; or (3) information is permitted to be disclosed under both FOIAand the Privacy Act and OCRdetermines disclosure would further an interest of the Department and the United States. However, OCRcan release certain information about your complaint to the press or general public, including the name of the school or institution; the date your complaint was filed; the type of discrimination included in your complaint; the date your complaint was resolved, dismissed or closed; the basic reasons for OCR'sdecision; or other related information. Any information OCR releases to the press or general public will not include your name or the name of the person on whose behalf you filed the complaint except as noted in the paragraph above. 6 I Page U.S.Department of Education, Officefor Civil Rights Complaint Processing Procedures FOIA gives the public the right of access to records and files of Federal agencies. Individuals may obtain items from many categories of records of the Federal government, not just materials that apply to them personally. OCRmust honor requests for records under FOIA,with some exceptions. Generally, OCR is not required to release documents during the case evaluation and investigation process or enforcement proceedings, if the release could reasonably be expected to interfere with or affect the ability of OCRto do its job. 5 U.S.C.§ 552(b)(7)(A). Also, a Federal agency may refuse a request for records if their release would or could reasonably be expected to result in an unwarranted invasion of privacy of an individual. 5 U.S.C.§ 552(b )(6) and (7) (C). Also, a request for other records, such as medical records, may be denied where disclosure would be a clearly unwarranted invasion of privacy.