UNITED STATES DEPARTM ENT OF EDUCATION
OFFICE FOR CfVIL RIGHTS
400 MARYLAND AVENUE, SW
WASHINGTON, OC20202 -1475

REGION XI
NORTH CAROLINA
SOUTH CARO LINA
VIRGINIA
WASHINGT ON, D.C.

March 28, 2013

(b)(6);(b)(7(C)

Re:

OCR Complaint No. 11- 13-2066
Notificatio n / Partial Dismissal Letter

Dear (b)(6);(b)(7(C)
This letter is to inform you of our evaluation determination regarding the discrimination
complaint you filed with the U.S. Department of Education (the Department), District of
Columbia Office for Civil Rights (OCR) on February 5, 2013 , against Duke University (the
University). In your complaint you allege that the University discriminated and retaliated against
you on the basis of race, disability, and sex. Specifically, you alleged:
1. The Universit discriminated against ou on the basis of sex when you were sexually
assaulted by (b)(6);{b)(7(C)
in (b){6); (b)(7(C)
2. The University discriminated a ainst ou on the basis of sex when you were sexually
.
harassed during a (b)(6);(b)(7(C)
in ~
3. The University discriminated against you based on disability when a faculty member
asked ou durin an interview for a !(b)(6);(b)(7(C)
!in the !(b)(5); (b)(?(C) Ihow many
(b)(6);(b)(?(C)
ou have had and whether you are able to !(b)(6); (b){7(C)
!.
4. The University discriminated against you based on race in that a (b){6);(b)(7(C)
course in the fall of ~
tau ht ou and other students to "und....
er-s":"'"
ta-n-.d..,.<"b)"'"<6!!!
""'
);""'
<b!'!!!
)(7!"'1'"'l'
fr....
o_m_.
(b)(6);(b)(7(C)
' incl udin that the
, as a , (b)(6); (b)(7(C)
textbook viewed "( b)(5); (b)(?(C)
!(b)(6);(b)(7(C) i"
5. The University violated the Family Educational Rights and Privacy Act of 1974 (FERPA)
by, among other things, failing to provide you complete copies ofrequ ested records.
6. The University retaliated against you by:
a. Delaying your !(b)(6); (b)(7(C) !paycheck;
b. Denying a mandatory placement interview to you in !(b)(6);(b)(7(C) !;
c. Threatening to dismiss you from the E~
!~>;(bj Iprogram in !(b)(6);!;
d. Involuntarily withdrawing you from the !(b)(6); (b)( !program in~!
(b:i;,
)("6)""""
;(...
b)"'"
(7...,
(C,.,..
) ---.I;and
e. Failing to rocess your withdrawal request from the !(b){6);(b)(7(C)
!course
in late (b)(6); (b)(7(C)
The Oepnrlment~f Educotion's 111i
ssio11is to promott!student nchiel'ementand prepnmf-io11for globalco111petitivc11ess
byfostering educntionnlexcellenceand ensuring equn/ access.
www.ed.gov

 Page 2 -- OCR Complaint No. 11-13-2066

If we have misstated or mischaracterized your allegations, please contact the OCR staff person
identified below within IO days of the date of this letter to provide any necessary clarification.
OCR is responsible for enforcing certain federal civil rights statutes and regulations , including
Title VJ of the Civil Rights Act of 1964 (Title VJ), 42 U.S.C. § 2000d, and its implementing
regulation , at 34 C.F.R. Part 100, which prohibit discrimination on the bases of race, color, or
national origin in activities or programs that receive federal financial assistance (FF A) from the
Department ; Title IX of the Education Amendments of 1972 (Tit le IX), 20 U .S.C. § 1681, el
seq., and its implementing regulation , at 34 C.F.R . Part 106, which prohibit discrimination on the
basis of sex in programs and activities that receive FFA from the Department; and Section 504 of
the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794, and its implementing regulation ,
at 34 C.F.R. Part 104, which prohibit discrimination on the basis of disability in programs and
activities that receive FF A from the Department. These laws also prohibit a recipient from
retaliating against an individual because that person complained about discrimination or
otherwise asserted rights under these laws. The University is a recipient of FFA from the
Department and therefore is subject to the provisions of these laws.
Under OCR's case processing procedures, OCR evaluates comp laints to understand the
allegations, gathers appropriate information , including jurisdictiona l information, and decides
whether OCR will proceed to complaint resolution or take other appropriate action. As part of
our evaluation of your comp laint, we considered the informatio n that you provided to OCR in
your complaint as well as your e-mail and telephone commun ications with OCR staff. After
careful consideration of this information, we determined that Allegations I, 2, 3, 4, 5, 6.a, 6.b,
and 6.c of your complai nt will not be opened for investigation, and we have dismissed those
allegations effective the date of this letter. OCR will proceed with an investigation of
Allegat ions 6.d and 6.e. More information on the basis for OCR's dismissal action follows.
Complaint Allegations That Are Untimely
Allegations 1, 2, 3, 6.b and 6.c were not filed in a timely manner with our office. OCR generally
will take action only with respect to allegation s that were filed within 180 days from the act of
b.The incidents that you cite .in these allegations
alleged discrimination (i.e ., by l<b)(6); (b)(7(C)
more than 180 days prior to your filing of the complaint on
all occurred in {b)(6); (b)(7(C)
(b)(6) ; (b)(7(C)
and thus are untimely.
Where an allegation of discrimination is untimely filed with OCR, OCR ' s procedures provide
that the Office Director or designee , under certain limited circumstances, may grant a waiver of
the 180-day filing requirement. You explained that the delay in filing this complaint was due to
your having blocked out the memories of the (b)(6) ; (b)(7(C)
sexual assault. You indicated that
who asked you about
you did not recall it until you were confronted by {b)(6); (b)(?(C)
the consequences of that event. You told OCR staff that you filed this complaint within 60 days
of recovering your memo ry. However, medical documentation submitted by you in support of
5 ); (b)(?
you "had some memories
these statements reflects that during a counseling session in !)~,<
that suggested sexual harassment" had occurred. You did not provide any specific reasons for
not having earlier filed complaints regarding the issues in Allegations 2, 3, 6.b, and 6.c. The

I

 Page 3 -- OCR Complaint No . 11-13-2066
informat ion you provided is not a sufficient basis for grant ing a wa iver of OCR's timeliness
requirements. Therefore we are dismissing Allegations I , 2, 3, 6.b, and 6.c effective the date of
this letter.
Complaint Allegation For Which Sufficient Detail Was Not Provided
Under OCR's case processing procedures , OCR will dismiss an allegation that lacks sufficient
detail (i.e., who , what, where , when, how) for OCR to infer that discrimination or retaliation lf~lf !
have occurred or is occurring. You told OCR that the University de layed sending you a
·
!(b)(6)
; (b)(7(C)
for approximate! y one month. You told OCR staff that you could not recall
;(b)(7(C)
was delayed but that you would provide
the date that your l<b)(6)
documentation rega rding the incident. On February 25 , 2013, OCR sent you a written request
for additional information regarding your complaint allegations, includ ing a request that you
provide a time line of the relevant events. The timeline you provided in response did not indicate
when your !~~,<5); (b)(? was delayed. Because OCR was not able to determine when this action
occurred and whether it was timely filed with our office, OCR is dismissing Allegation 6.a as of
<6!U
the date of this letter. OCR notes as well that it appears that you did receive the
thereby resolving this issue.

I

I

l

l~~,(6); !,

Complaint Allegations Tha t Do Not State a Violation of One of the Laws OCR Enforces
Under OCR's case processing procedures, OCR will dismiss an allegat ion that does not state a
violation of one of the laws our agency enforces. In Alle ation 4, ou alleged that the University
discriminated against you based on race in that a (b)(6)
;(b)(7(C)
course during the
1<6)(6); !taught you and other students to "understand
from (b)(6)
; (b)(7(C)
"'w_e__ .,..,.
, -(b-)(61111
);""'
<b-)(!!11
7(11!!1
C)__
,:":"'
, _a_
s__.
a
(b)(6)
; (b)(7(C)
" includin that the textbook v1"e_
,,
In this case, you were enrolled in a (b)(6)
; (b)(7(C)
course . T he class included the study of
You and some other students
(b)(6);(b)(7(C)
by l<b)(6);(b)(7(C)
objected to some of the material as teaching '1(b)(6)
; (b)(7(C) I" including (b)(5); (b)(?(C)views that
(b)(6)
; (b)(7(C)
and the instructor's statement that (b)(6); (b)(7 might not
(b)(6)
;(b)(7(C)
. On October 29, 2012 , you e-mailed the University ' s Office of
Equity to notify them of your concerns related to the class. This e-mail requested permission to
take the class pass/fail or, in the alternative , asked that the "c lass be co-taught with another
professor. "

I

In cases of alleged harassment involving speech or expression, the protections of the First
Amendment to the Constitution of the United States apply. On Ju ly 28, 2003 , OCR issued a
" Dear Colleague Letter" clarifying OCR's enforcement standards in light of First Amendment
protections. As noted in the Letter, the regulations enforced by OCR "are not intended to restrict
the exercise of any expressive activities protected under the U.S . Constitution."
In order to be prohibited by the statutes within OCR's jurisdiction, harassment must include
something beyond the mere expression of views , words, symbols or thoughts that some person
finds offensive. Under OCR's standard, the conduct must also be considered sufficiently serious
to deny or limit a student's ability to participate in or benefit from the educational program.

 Page 4 -- OCR Com p laint No . 11-13-2066
OCR ' s standards req uire that the conduct be eva luated from the perspect ive of a reasonable
perso n in the alleged v ictim's position , considering all the circumstances, including the alleged
victim ' s age. Moreover, OCR interp rets its regu lations consis tent with the requ irements of the
First Amendment, and all actions taken by OCR must comport with First Amendment principles.
Here , while some of the course teach ings may have been controvers ial, the speech occurred in
the context of class instruction and was related to the course curr icu lum. Because OCR cou ld
not restrict the speec h or exp ression at issue in this complaint consistent with First Amendment
princip les and there is no allegation that there was accompany ing conduc t sufficient to raise an
inference of a hostile environment , the offensive express ions do not raise a compliance issue
unde r a statute o r reg ulation enforced by OCR. In addition , wh ile you indicated that ou believe
that being required to take a (b)(6); (b)(?(C)
course rather than a (b)(6); (b)(7(C)
5
course "imp lies that (b)( ); (b)(?(C)
is more impor tant tha"n-o_th_e_r_m
- in-o-ri-ty- stu
- d-ie.....
s
courses ," OCR does not genera lly second-guess such curriculum dec isions . Therefore , OCR is
dismissing Allegation 4 effec tive the date of this letter.

I

OCR also is dismiss ing Allegation 5, in which you alleged violatio ns of the Family Educational
Rights and Privacy Act of 1974 (FERP A). OCR does not have jurisd iction over these claims.
The Departmen t's Family Policy Compliance Office enfo rces FERP A, wh ich governs access to
the educational reco rds of students. Questions and compl aints rega rding FERP A shou ld be
directed to:
Fam ily Policy Compl iance Office
U.S. Departmen t of Education
400 Marylan d A venue, SW
Wash ington, DC 20202
1-800-USA-LEARN (1-800-872-5327)
Complaint Allegations For Invest igation
Because OCR has dete rmi ned that it has jurisdiction and that Allega tions 6.d and 6.e were filed
timely , OCR is opening Allegations 6.d and 6.e for investigat ion. Please note that opening the
allegations for investigat ion in no way imp lies that OCR has made a determination with regard to
the merit s of the complaint. During the investigation , OCR is a neutra l fact-finder, co llecting
and analy zing relevant evidence from the complainant , the recip ient, and other sources , as
appropriate. OCR will ensure that its investig ation is lega lly sufficien t and is dispo sitive of the
allegations in accordance with the provisions of the Case Processing Manual, which is available
at http://www.ed.gov/about/office s/list/ocr/doc s/ocrcpm.html.
Our goal is the prompt , appropriate resolution of the allegat ions contained in the comp laint.
While we are proceeding with an investigation of Allegations 6.d and 6.e, there are other
approaches that can be used to achieve this goal. The documen t entitled "OCR ' s Complaint
Processing Procedures," which was sent to you with OCR 's letter acknow ledging receipt of your
complaint , includes informat ion about the approaches to comp laint reso lutio n that OCR uses and
is ava ilable at http://www.ed.gov /abou t/offices/ list/ocr/comp laints- how.html.
Please take
particular note of the section on early complaint resolution. Under this informal approach , OCR

 Page 5 -- OCR Complaint No. 11-13-2066
may attempt to resolve the allegation by facilitating discussions and exploring options with the
Complai nant and the University. If you believe this procedure can be useful in this case , please
contact the OCR staff person identified below as soon as possible.
There may be state and local laws relevant to your complaint. You may wish to consult with a
private attorney , local legal aid organization , and/or state or local bar association, which may be
able to assist you further.
Please be aware that the Univer sity may not harass , coerce, intimidate, or discriminate against
you becau se you filed a complaint or participated in the complaint resolution process. If this
happen s, you may file another compla int alleging such treatment. Also , under the Freedom of
Information Act , it may be necessary to release this document and related correspondence and
records upon reque st. If OCR receiv es such a request , we will seek to protect , to the extent
provided by law, personal information that , if released , could constitute an unwarrant ed invasion
of privacy.
If you have any questions, feel free to contact Sebastian Amar at 202-453-6023 or
Seba stian.Amar@ed.gov, Kay Bhagat at 202-453-6598 or via e-mail at Kay.Bhagat (@ed.gov , or
ed.gov.
Martha Russo at 214-661-9622 or Martha.Russo (@.
Sincerely,
r X6); (bX7(C)

~Olabisi
L. Okubadejo
Te am Leader
District of Columbia Office
Office for Civil Rights

 UN ITED STATES DEPARTMENT OF EDUCATION

REGION XI
NORTH CAROLINA
SOUT H CAROLINA
VIRGINIA
WASHINGrON, D.C.

OFFfCE FOR CfVIL RIGHTS
400 MARYLAND AVENUE, SW
WASHINGTON , DC 20202-1475

March 28, 2013

Dr. Richard H. Brodhead
Office of the President
Duke University
207 Alle n Building
Box 90001
Durham , NC 27708-000 l
Re:

OCR Complaint No. 11-13-2066
Notificat ion / Data Request Letter

Dear Dr. Brodhead:
This letter is in reference to a complaint that was filed with the U.S . Department of Education
(the Department), District of Columbia Office for Civil Rights (OCR) on February 5, 2013,
against Duke Unive rsity (the University). The Complainant alleged that she was retaliated
against because she raised complaints of sex and race discrimination when the Univers ity (a)
involuntarily withdrew her from the !<~l<?l
;(bj !program inl(b)(6)
;(b)(7(C) !; and (b) failed to process
;(b)(7(C)
Icourse in !(b)(6);(b)(7(C)
her withdrawal request from the !(b)(6)

l

OCR will contact the University by telephone to provide the name of the Complainant.
OCR is responsible for enforcing certain federal civi l rights statutes and regulations , including
Title VI of the Civi l Rights Act of 1964 (Title VI) , 42 U.S.C. § 2000d, and its impl eme ntin g
regulation , at 34 C.F.R. Part l 00 , which prohibit discrimination on th e bases of race, colo r, or
national or igin in activ ities or programs that receive fede ral financia l assistance (FF A) from the
Department; and Title IX of the Education Amendments of 1972 (T itle 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 programs and activities that receive FFA from the Depar tm ent. These laws also
prohibit a recipient from retaliating against an individual because that person complained about
discrimination or otherwise asserted rights under these law s. The University is a recipient of
FF A from the Department and therefore is subj ect to the provisions of these laws.
Because OCR has determ ined that it has juri sdiction and that the complaint was filed timely ,
OCR is opening the above allegations for investigation . Please note that opening the allegations
for investigation in no way implies that OCR has made a determ ination with regard to the merits
of the complaint. During the inve stigation , OCR is a neu tral fact-finde r, collecting and analy zing
relevant evidence from the complainant , the recipient , and other sou rces, as appropriate. OCR
The Dcpnrt111ent
of Edurntion's mission is to promotestudc11lac/1il'l'emen
t nn.dprep11ral'io11
for globalco111peliti
ue11ess
by fostering educationalexcellencea11densuringequalaccess.
wunv.ed.gou

 Page 2 -- OCR Complaint No. 11-13-2066
will ensure that its invest igation is legally sufficient and is dispositive of the allegations m
accordance
with the prov1s1ons of the Case Processing Manual, available at
http://www.ed.gov/a bout/offices /list/ocr/docs /ocrcpm.html.
Our goal is the prompt, appropriate resolution of the allegat ions contained in the complaint.
While we are proceeding with an invest igation of the allegations, there are other approaches that
can be used to achieve this goal. For your information, we have enclosed a copy of a document
entitled "OC R's Complai nt Proce ssing Procedures. " Please take particular note of the sectio n on
early complaint reso lution. Under this informal approach, OCR may attempt to resolve the
allegations by facilitating discussions and exploring options with the Comp lainant and the
University. If you believe this procedure can be useful in this case, please contact the OCR staff
person identified below as soon as possible.
Also , attached is a request for data necessary to pursue resolution of this complaint. OCR's
authority for obtaining information is provided in the Departme nt's regulation implementing
Title VI, at 34 C.F.R. § I 00.6(c) . OCR is requesting that the University submit this information
wit hin 15 days of the date of this letter (i.e., by April 12, 20 13). If any item in our request is
unclear, please contact us at the telephone number provided below. If you experience any
difficulty complying with this request , you should notify us prior to the expiration of the 15-day
period. Please be aware that it might be necessary for us to make additional requests for
information in the future. If we find it necessary to conduct an on-site investigation of the
complaint, we wi ll notify you in advance of our proposed plans to visit the University.
We have advised the Com plainan t that the University may not hara ss, coerce, intimidate , or
discriminate against her because she filed a complaint or participated in the complaint resolution
process. If this happens, she may file another complaint allegi ng such treatment. Also, under the
Freedom of Information Act, it may be necessary to release this document and related
correspondence and recor ds upon request. If OCR receives such a request , we will seek to
protect , to the extent provided by law, personal information that, if released , could constitute an
unwarranted invasion of privacy.
We look forward to your cooperation during the resolution of this complaint. If you have any
quest ions , feel free to contac t Sebastian Amar at 202-453-6023 or Sebast ian.A mar@ed.gov, Kay
Bhagat at 202-453-6598 or via e-mail at Kay.Bhagat <@ed.gov, or Martha Russo at 214-66 1-9622
or Martha.Russo@ed.gov.
Sincerely,

r6);

(bX7(C)

Mlabisi
L. Okubadejo
Team Leader
District of Columbia Office
Office for Civil Righ ts

 Pa ge 3 -- OCR Complai nt No. l l-1 3-2066

Duke University
OCR Compl aint No. 11-13-2066
Data Request
Please submit the following inform ation:
l . The name , title, and contact infom1ation for the person who will serve as the Univers ity's
contact during OCR's investigat ion of this comp laint.
2. A narrative response to the complai nt allegations .
3. All records , includin g e-ma ils, letters, telephone logs, related to the Complainant's
(b) !program in or about (b)(6);(b)(7(C)
nd to the Complainant's
withdrawa l from the l~~~~J;
request to withdraw from !(b)(6);(b)(7(C)
Icourse in the (b)(6); (b)(7(C).
4. The name(s) and title(s ) of Univers ity faculty or staff responsib le for the decision to
withdra w the Comp lainan t from the !(b)(6);(b) !program in or about !(b)(6);(b)(7(C)

l.

5. The name(s) and title(s) of University faculty or staff responsibl e for respondin g to
requests for course withdrawals.

6. A copy of all policies and procedures related to the involuntary withdrawa l of stude nts
from the !~~!~;;
(bj !program and related to student requests to withdraw from courses.

l~~!~rl

7. A list of all other students who have been involuntarily withdrawn from the
(b)
program in the past three (3) acad emic years (2012-2013 ; 20 11-2012; and 2010-2011).
For each student , provide a brief explanat ion for why the student was involuntarily
withdrawn from the program; identify the Uni versity personne l - by name and title involved in the determination to involuntarily withdraw the stud ent ; and indicate whethe r
the stud ent raise d any complaints of discrimination prior to the withdrawal.

8. A list of all other student s who have requested to withdraw from a course in the !(b)(6); (b)(7 I
program in the past three (3) academic years (20 12-2013; 2011-20 12; and 2010-201 1).
For eac h stude nt, provide a brief explana tion of how the University responded to each
request; identify the Univer sity personnel - by name and title - involved in considering
each request; and indicat e whether the stude nt raised any complaints of discrim ination
pr ior to the request to withdra w from a course.
9. A copy of all comp laints or grievances raised by the Complainant within the Un iversity
and a copy of the Univer sity 's response to each.

10. Any addi tional information that you believe would be of assistance to OCR in the
invest igation of this comp laint.