UNITED ST ATES DEPARTMENT OF EDUCAT ION
OFFICE FOR CIVIL RIGHTS

61 FORSYTHST., SOUTH\A/EST,SUITE 19TIO
ATLANTA, GA 30303-8927

REGION IV
,\LAUA I\IA
FLORIDA
GEORGI/\
TENl'\ ESSEE

Octobe r 23. 20 17
VIA ELE CTRON I C MAIL

r K6)
;(bX7(C)

Re:

OCR Reference No . 04-l 7-2383
Univer sity of South Florida

(b){6)
; (b)(7(C)
Dear_

l

On !<b)(6); (b)(7(C)
lthe U.S. Department of Education (Department). Office for Civil Rights
(OCR). Atlanta Office. received your complaint against the University o f South rlorida
(University), in \Vhich you (Comp lainant) alleged that the University engaged in discrimination
5
J; (bj(I !notice of sexual battery. OCR
on the basis of sex when it failed to respond lo you1i~~,<
determined that it has the authority to investigate this allegation consistent with our comp laint
procedures and applicab le la\.v.
OCR is responsible for enfo rcing Title IX of the Education Amendme nts of 1972 (Title IX). 20
U.S.C. §§ 168 L el seq .. and its implementing regulation. 34 C.F.R. Part I 06. which prohibit
discrim ination on the basis or sex in any education program or activity operated by a recipient or
Federal linanc ial assistance from the Departme nt. The University receives f cderal linancia l
assistance from the Department, and is therefore subject to Title IX and the regulation.
Additional information abou t the laws OCR enforces is available on our website at
http://\\'ww.cd .!.!<W
/ ocr.
Because OCR has determined that it has jurisd iction and that the complaint was tiled timely , it is
opening this complain t for investigation. Please note that opening the comp laint for
investigation in no way implies that OCR has made a determination with regard to its
merit. During the investigation. OCR is a neutral fact-linder. collect ing and analyzing relevant
evidence from the comp lainant. the recipient. and other sources. as appropr iate. OCR will ensure
that its investiga tion is legally sufficient and is dispos itive of the allegation, in accordance with
the provis ions of Article 111of the Case Processing Manual.
Accordingly, OCR will investigate the legal issue of whether the University promptly and
~cxual violence report. in noncomp liance
equ itably responded to the Complainant 's 5>.<bRn
with the Title IX implemen ting regulation. at 34 C.F.R. §§ I 06.8 and I 06 .3 1.

!~~~

The Dep,1rtmen t of Edurntion's mis sion is to promott• student ,1chit>vt•ment mid pn•p,1r.ition for glol>.1/compdith ·i•ncs.,
L~
v fostL'ring «!dumtion,1/ «!Xcel/ena• ,md i•nsuring i•qual ,Kcess.

www.ed.gov

 Page 2 (OC R No. 04-17-2383)

Under the rreedom or Information Act , it may be nec essary to relea se this document and relat ed
correspondence and records upon reque st. In the event that OCR receives such a reque st, we ,viii
seek to protect to the extent provided by the law , personabl y identifiabl e information , which , i r
released. could reaso nabl y be expected to constitute an unwarrant ed in vasio n of personal
pr ivacy .

l f you hav e any questions about this letter, please contact Stephanie Pess in, Attorney , at (404)
cl.!!ov. or me at (404) 974-9367 .
974-9343 , or by email at Stcph:mi c.Pcssinlw<.:

Sincerelv.
(b)(6); (b)(7(C)

t.bony Calloway -:::;pencer
Co mpliance Team .Lea der

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·

 UNITED ST ATES DEPARTMENT OF EDUCATION

REGION IV

OFFICE FOR CIVIL RIGHTS

ALAl3Al\1r\
FLORIDA
GEO RGIA
TENr-.:ESSEE

61 FORSYTHST.,SOUTHWEST, SUITE 19T10
A TLI\NT I\, GA 30303-6927

October 23. 20 17
VIA REGULAR AND ELECTRON IC MAIL
Dr. Judy Gcnshaft
President
University of South Florida
4202 East Fowler Avenue
Tampa, FL 33620
Re: OCR Reference No. 04-17-2383

Dear President Genshall:
i (b)(6); (b)(7(C)

I

O~the
U.S. Department of Education (Department), Oflice for Civil Rights
(OCR), Atlanta Office. received the above-referenced com laint against the University of South
alleged that the University
Florida (Unive rsity) , in vvhichthe Complainan (b)(5); (b)(?(C)
5
); (bj{/
notice of
engaged in discrimination on the basis of sex when it foiled to respond to hc1U~,<
sexua l battery. OCR determined that it has the authority to investigate this allegation consiste nt
with our complaint procedures and applicable law.

l

OCR is responsible for enforcing Title IX of the Education Amendments of 1972 (Title IX), 20
U.S.C. §§ 168 1 el seq .. and its implement ing regulation. 34 C.F.R. Part 106. ,.vhich prohibit
discrimination on the basis of sex in any education program or activity operated by a recipient of
Federal financial assistance from the Department. The University receives r-ederal linancial
assistance from the Department and is therefore subject to Title IX and the regulation.
Additional information about the laws OCR enforces is available on our website at
http ://,, '\\W,Cd.!.!.O V/ ocr .
Because OCR has determined that it has jurisdiction and that the complaint was filed timely. it is
opening this complaint for investigation. Please note that opening the complaint for
investigation in no way implies that OCR has made a determination with regard to its
merit. During the investigation. OCR is a neutral fact-tinder , collecting and analyzing relevant
evidence from the complainant, the recipient, and other sources. as appropriate. OCR will ensure
that its investigation is legally suffic ient and is dispositive orthe allegation, in accordance with
the provisions of Article Ill of the Case I'rocessing Mc11111al.
Accordingly. OCR will investigate the legal~~gf~Rf'f1ether the University promptly and
sexual violence report. in noncompliance
equ itably responded to the Complainant"s !~ J '1
with the Title IX implemen ting regulation. at 34 C.F.R. §§ I 06.8 and I 06.31.
The Department

of Edurntio11 's mission j5 to promott• student achi1.•1'eme11t,111dprepar,1tio11 for g/o/1,1/compl'litfre1k
by fostering t!ducationa/ t'XCL'IIL11cem1d e11s11ri11g
equal ,,n-1.•ss
.
0

www.ed .gov

'SS

 Page 2 !OCR Ref. 04- 17-2383]

Please read the enclosed document titled OCR ·s Complaint ProcessingProcedures, which includes
information about the regulatory prohibitions against retaliation, intimidation and harassment-of
persons who file complaints with OCR or participate in an OCR investigation; and application of
the Freedom of Information Act and the Privacy Act to OCR investigations.
OCR will conduct a prompt investigation of this complaint. The regulation implementing Title VI,
at 34 C.F.R. § I00.6(b) and (c), requires that a recipient of FFA make available to OCR information
This requirement is incorporated by
that may be pertinent to reach a compliance dete1111ination.
rctcrencc in the Title IX regulation at 34 C.F.R. Section I 06.71. Pursuant to 34 C.F.R. § 100.6(c)
and 34 C.F.R. § 99.31(a)(3)(iii), of the regulation implementing the Family Educational Rights and
Privacy Act. 20 U.S.C. § 1232g, OCR may review personally identifiable records without regard to
considerations of privacy or conlidentiality.
Accordingly, OCR requests that the University submit the following non-redacted infonnation to
OCR within thirty (30) calendar days from the date of this letter (please note that electronic
submission of information is preletTed(to Stephanie.Pcssinra)cd.gov) and hard copies arc not
necessary; also. please do not include any Social Security numbers in your submission):
(b)(7)(A)

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 Page3 [OCR Ref. 04-17-23831
(b)(7)(A)

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 Page 4 [OCR Re f. 04-17- 2383]
(b)(7)(A)

Pur suant to Sec tion 302 of OCR's Cas e Process ing /\1/anual, a complaint ma y be reso lved at any
time when. befo re the conclusion of an inv est igati on. the University exp resses an interes t in
reso lving th e complaint. Plea se contact the assigned investigator/attorney if the University
w ishes to discuss a Sec tion 302 vol untar y reso lution.
Thank you for you r cooperation in this matt er. In addition to the information reque sted above,
OCR may need to req uest add itional informati on and interview pertin ent personnel. During the
course of th is inv es tigation, we will conduct one or more on-site visi ts. You w ill be co nta cted to
schedul e a mutuall y convenient time for those vis its.
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 Page 5 [OCR Ref. 04- 17-2383)

If you have any questions about this letter. please contact Stephanie Pessin, Attorney, at (404)
974-9343, or by email, at Slcphanic.Pessi11
ra1.cd.gov, or me, at (404) 974-9367.
Sincerelv,
(b)(6); (b)(?(C)

Ebony Calloway-Spencer, 'Esq.
Compliance Team Leader

Enc los ur e

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 OCR COMPLAINT

LAWS ENFORCED

PROCESSING

PROCEDURES

BY OCR

OCR enforces the following laws:
o
o

o
o

o

o

Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the
bnsis of race , color or nation:il origin:
Title IX of the Education Amendments of 1972, which prohibits discrimination
on the basis of sex;
Sl.!ction 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 or disability;
Boy Scouts of America Equal J\t:cess Act, part of the No Child Left Behind Act
of 200 I. 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 sccondnry schoo ls, local education agencies, and state education agencies
that have a designated open forum or limited public forum.

EVALUAT IO N OF THE COMPLAIN T

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 detem1ine whether OCR has legal authority
to investigate the complnim: that is. whether the complaint alleges a violation of one or
more of the laws OCR enforces. OCR must also determine whether the complaint is filed
on time. Gl!nerally. a complaint must be filed with OCR within 180 calendar days of the
last act that the complainant believes was discriminatory . 1 If the complaint is not tiled on
time, the complainant should provide the reason for the delay and request a waiver of this
filing requirement. OCR will decide whether to grant the waiver. In addition, OCR will
determine whether the complaint contains enough information about the alleged
discrimination to proceed 10 investigation. If OCR needs more information in order to
clarify the complaint. it will co111ac
t the complainant: the complainant has 20 calendar
days within which to respond to OCR's request for information.
OCR ,vill dismiss a complaint if OCR detcm1ines that:
o
o

OCR docs not have legal authority to investigate the complaint;
The complai111fails to state a vioiation of one of the laws OCR enforces;

: Comp laints thut allege discrimination b:1scd on age arc timely if filed with OCR within 180 calendar days
of the date the complainant first knew :ib0m the alleged discrimination.
December 20 i 2

 Pc1ge2 - OCR Complaim Processing Procedures
o
o
o
o

o
.i

The complaint was not tiled timely and that a waiver will not be granted;
The complaint is unclear or incomplete and the complainant does not provide
the information that OCR requests within 20 calendar days of OCR's request;
The allegations raised by the complaint have been resolved;
The complaim 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 the resolution meets OCR regulatory standards or. if still
pending, OCR anticipates 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 arc foreclosed by previous decisions of the Federal courts, the
li .S. Sccrc!ary of Education. the U.S. Department of Education's Civil Rights
Reviewing Authority. or OCR policy detem1inations.

OPENI NG T HE COMPLAINT FOR INVESTIGATION

If OCR determines that it will investigate the complaint, it will issue letters of
notification lO the complainant and the recipient. Opening a complaint for investigation
in no way implies that OCR has mndc a determination with regard to the merits of the
complaint. During the investigation, OCR is a neutral fact-finder. OCR will collect
and analyze relevant evidence from the complainant, the recipient, and other sources as
appropriate. OCR will ensure that investigations are legally sufficient and arc dispositive
of the allegations raised in the complaint.
INVES TIGATIO N OF THE COMP LA INT

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, OCR will detennine
with regard to each allegat ion that:
o

There is insufficient evidence to support a conclusion that the recipient failed
t0 comply with the law. or

o

i\ preponderance of the evidence supports a conclusion that the recipient failed
t0 comply with the law.

OCR 's determi nation will be explained in a letter of findings sent to the complainant and
recipient. Letters of' findings issued by OCR address individual OCR cases. Letters of
findings contain foct-spcci lie investigative findings and dispositions of individual cases.
Letters of findings are not formal stmcmt:nts of OCR policy and they should not be relied
upon. cited. or construed :.issuch. OCR· s formal policy statements are approved by a
duly ,iuthorized OCR of'ficial and made available to the public.

 Page 3 - OCR Complaint Processing Procedures

RF-SOLUTION OF THE COMPLAINT AFTER A DETERMINATIONOF
NONCOMPLIANCE
If OCR dctcnnincs that a recipient foiled to comply with one of the civil rights Jaws that
OCR enforces. OCR will conlnct 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 identilicd by OCR. The tenns of the resolution agreement, if
fully performed, will remedy the identified violation(s) in compliance with applicable
civil rights laws. OCR will 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 Jaws.
l f the recipient refuses to negntiat~ a voluntary resolution agreement or does not
immediately indicate its willingness to negotiate, OCR will inform the recipient that
it has 30 days to indicate its willingness to engage in negotiations to voluntarily resolve
identified areas of noncompliance. or OCR will issue a Letter of Finding to the parties
providing a fac tual and legal basis for a finding noncompliance.
If, after the issuance of the Letter of Finding of noncompliance, the recipient continues
to refuse to negotiate a resolution agreement with OCR. OCR will issue a Letter of
Impending Enforcement Action and will again attempt to obtain voluntary compliance.
f f the recipient remains unwilling to negotiate an agreement, OCR will either initiate
administrative enforcement proceedings to suspend, terminate, or refuse to grant or
continue Federal financial assistam:e to the recipient. or will refer the case to the
Ocpa nm ent of Justice. OCR may also move immediately to defer any new or additional
Federal linancial assistance lO 1he institution.

RESOLUTION OF THE COMPLAINT PRIORTO THE CONCLUSIONOF THE
lNVESTIGAT!ON
Ea rly C omplaint Resolution (ECR) :

Early Complaint Resolution allows the parties (the complainant and the institution which
is the subjct:t orthe complaint) an opportunity to resolve the complaint allegations
quickly: generally. soon alh:r the complaint has been opened for investigation. If both
parties are willing lo try this approach, and if OCR determines that Early Complaint
Resolution is appropriate. OCR will facilitate settlement discussions between the parties
and \\'Ork with the parties to help them understand the legal standards and possible
remedies . To the extent possible. staff assigned by OCR to facilitate the Early Complaint
Resolution process will not be the s1aff assigned to the investigation of the complaint.
OCR docs not approve, sign or endorse any agreement reached between the parties as
a result or Early Complaint Resolution. and OCR docs not monitor the agreement.
However. if the recipient institution docs not comply with the tenns of the agreement.

 Page 4 - OCR Complaint Processing Procedures
the complainant may lite another complaint with OCR within 180days of the date of the
original discrimination or within 60 days of the date the complainant learns of the failure
to comp ly 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 OCR detennines that
resolution of the coir1plaintbefore the conclusion of an investigation is appropriate,
OCR will attempt to negotiate nn agreement with the recipient. OCR will notify the
compiainant o!' thc recipient's request and will keep the complainant infonned throughout
ail stages or the resolution process. The provisions of the resolution agreement that is
reached must be aligned with the complaint allegations and the infom1ation obtained
during the invcstigaiion, and must be consistent with applicable regulations. A resolution
agreement reached before the conclusion of an investigation will be monitored by OCR.
APPEAL OF OCR'S DETERMJ '.'/ATIONS
OCR is committed to a high quality resolution of evc~y case. OCR affords an opportunity
the complainant to submit an appeal of OCR's dismissal or administrative closure of a
complaint or lcucr linding insufficient evidence of a violation. The appeal process
provides an opportunity for complainams to bring information to OCR 's attention that
would change OCR ' s decision. Th e appeal process will not be a de novo review of
OCR's tkcision .
10

If the complainant disagrees with OCR ·s decision, he or she may send a written appeal to
the Director of the Enforcement Office (Office Director) 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 tactual information was incomplete, the analysis of the facts was
incorrect. and/or the appropr iate leg,:! standard was not applied, and how this would
change OCR's determinat ion 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 orthe <letcnnination letter. The Office Director may
exercise discretio n in granting a waiver of the 60-day timeframe where:
l. the complainant was unable 10 submit the appeal within the 60-day timeframe
because of illness or other incapacitating circumstances and the appeal was
filed v.rithin30 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 as promptly as possible. The decision of
l hc Office Director constitutes the agency' s final decision. The decision will infonn the

 Page 5 - OCR Complaint Processing Procedures
complainant that he or she "may have the right to file a private suit in federal court
whether or not OCR finds a violation."
ADDITIONAL INFORMATIO:'~
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 does 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 prohibited by the Age Discrimination Act of
1975. a civil action in federal court can be filed only after the complainant has exhausted
administrat ive remedies. Adminis1rativcremedies are exhausted when either of the
following has occurred:
1. 180 days have elapsed since the complainant filed the complaint with OCR

and OCR has made no finding; or
2. OCR issues a finding in favor of the recipient. If this occurs, OCR will promptly
notify the complainan! and will provide additional information about the right to
file for injunctive relief.
Prohibition

a gainst 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
'vV
ith OCR.
Investigatory Use of Personal Information
In order to investigate a complaint, OCR may need to collect and analyze personal
information such as student records or employment records. No law requires anyone
to give personal information to OCR and no formal sanctions will be imposed on
complainants or other persons who do not cooperate in providing inforn1ationduring
the complaint investigation or resolution process. However, if OCR is unable to obtain
lhe information necessary to investigate a complaint, we may have to close the complaint.

*

The Privacy Act of 1974. 5 U.S.C. 552a, and the Freedom of Infom1ation Act (FOIA),
5 U.S.C. 552, govern the use or 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 arc maintained by the government that are
retrieved by the individual"s nairn.:.social security number, or other personal identifier.

*

 Page 6 -- OCR Complaint Processing Procedures
It regulates the collection, maintenance, use and dissemination of certain personal
information in the files of Federal agencies.
The information that OCR collects is analyzed by authorized personnel within the agency
and will be used only for authorized civil rights compliance and enforcement activities.
However. in order to investigate or resolve a complaint, OCR may need to reveal certain
information to persons outside the agency to verify facts or gather additional infom1ation.
Such details could include the age or physical condition of a complainant. Also, OCR
may be required to reveal information requested under FOIA, which gives the public the
right of access to records of Federal agencies. OCR will not release any information 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).
OCR docs not reveal the name or other identifying information about an individual unless
it is necessary for completion of an investigation or for enforcement activities against an
institution that violates the laws, or unless such information is required to be disclosed
under the FOi/\ or the Privacy Act. OCR will keep the identity of complainants
coniiclcntial except to the extent necessary to carry out the purposes of the civil rights
la\.,·s.or unless disclosure is required under the FOIA, the Privacy Act or otherwise
by law.

FO!/\ gives the public the right or 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. OCR must 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 affect the abiiity orOCR to 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 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
disdosurc would be a clearly unwarranted invasion of privacy