UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS. REGION I
5 POST OFFICE SQUARE. FLOOR
BOSTON, MASSACHUSETTS 02109-3921

 

September 7, 2017
VIA EMAIL: 

Re: Complaint No. 01-14-1155
Dear Superintendent Bella Wong:

The U.S. Department of Education?s Of?ce for Civil Rights has completed its
investigation of the above?referenced complaint filed against Lincoln-Sudbury Regional High
School {School}. The Complainants alleged that the School discriminated against the Student by
failing to respond and appropriately when the Student reported to the School on
November 7, 2013, that two students had sexually assaulted her days earlier. As explained
below, OCR found insufficient evidence to support the Complainants? allegation.

OCR is responsible for enforcing Title IX of the Education Amendments of 1972, 20 U.S.C. 
1681 et seq, and its implementing regulation, at 34 C.F.R. Part 106 (Title IX). 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 ?nancial assistance,
the District is subject to Title IX. Therefore, OCR had jurisdiction to investigate this complaint.

Based on the information available, OCR investigated the following legal issue:

Whether the School failed to and equitably reapond to notice of a sexual
assault, in violation of 34 CPR. Section 

OCR reviewed extensive information provided by both the School and Complainants.
Information included student records, investigative documents, and correspondence with the
relevant parties and School staff. OCR also interviewed the two housemasters who investigated
the complaint, the Director of Student Services, and the Complainants. Although OCR did not
investigate any Section 504 and Title II allegations, we do discuss the obligations of Section 504
and Title 11 as they relate to steps the School took in its Title IX investigation.

Background Information

The School is divided into four houses. Each house is run by a housemaster. Amon the many
administrative responsibilities the housemasters hold is the responsibility to enforce the student
code of conduct, which includes prohibitions on sexual harassment. Housemasters investigate
and hold hearings pertaining to any violation of the student code of conduct.

The Department of Education's mission is to promote student achievement and preparation for global competitiveness
by fostering educational excellence and ensuring equal access.

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Page 2 OCR Complaint No. 01?14-1 155

Students in different houses have limited interaction with one another in school. One of the
accused students (Respondent 1) was in Housemaster 1?s house (House) with the Student. The
other accused student (Respondent 2) was in Housemaster 2?s house.

At the time of the incident, the Student was in tenth grade at the School and on an IEP for a
speci?c learning disability in math and reading. Respondent 2 was also on an IEP, and his team
had proposed an extended evaluation prior to the incident. Respondent 1 was referred for
services under an IEP shortly after the Student reported the incident to the School.

Factual Findings

On Thursday, November 7, 2013, the Student reported to the School clinical counselor that on
November 1, while attending the School football game, Respondents 1 and 2 sexually assaulted
her under the bleachers during a game of truth or dare. The respondents exchanged texts with
the Student following the incident. OCR reviewed the transcript of the counselor's conversation
with the Student and found that the counselor indicated she was available to support the Student
but that she needed to report the incident to the authorities, administration, and her parents.
Immediately, the counselor brought in the Student?s mother (who is a teacher at the school) and
Housemaster 1. Subsequently, the police were informed of the incident. Additionally,
Housemaster 1 consulted with the Director of Student Services who was brought in because the
mother was a teacher at the school and because the School?s Title IX coordinator was newly
appointed. The Director had previous experience serving in a similar role as the Section 504
coordinator and served as Title 1X coordinator for the incident.

The police requested that the School wait to begin its own investigation until the police could
gather its facts. The Complainants told OCR that the School did not act or check in on the
Student after the initial reporting until the School?s official investigation began. However, OCR
found that although the investigation did not begin immediately, the School did take steps right
away to support the Student and to ensure she did not have contact with the respondents.

On Monday, November 11, 2013, a federal holiday, Housemaster I emailed the Complainants to
check in on the Student, see if the respondents had contacted her, and ?nd out whether the
Student felt comfortable returning to school the following day. Housemaster I told the
Complainants that they could call her at home that evening. The following day, the
Complainants responded via email that the Student was not doing well and the respondents
would receive harassment prevention orders (HPO) that day. The email sent by the
Complainants notes that there were more texts between the Student and respondents after the
incident than the Student originally shared with Housemaster l.

The Student did not attend school November 12, 2013. The same day, the respondents were
served with HPOs, and the housemasters asked both respondents to stay home the next day. The
housemasters told OCR that the HPOs applied in school and if the respondents saw the Student,
they were told to turn around and go in the other direction. The housemasters also informed
OCR that they immediately reviewed the Student?s and respondents? schedules to determine if
they shared any classes or lunch together, and determined that the Student did not share any
classes with the respondents. The Complainants asserted that the Student shared a study skills
class with Respondent 2. In interviews with OCR, Housemaster 2 explained that although they

Page 3 OCR Complaint No. 01-14-1155

had study skills during the same block, they met with different special education liaisons, and the
Complainants clari?ed that the Student was in the liaison's of?ce while Respondent 2 was in a
classroom across from the office. Although the Student and Respondent 1 shared the same lunch
block, the Student told Housemaster 1 that she did not eat lunch in the cafeteria. OCR asked
Housemaster 1 if the Student did not eat in the cafeteria because of the incident. Housemaster I
told OCR she asked the Student about this and found that she did not eat regularly in the
cafeteria for reasons unrelated to the incident. Housemaster I explained the School is an open
school, and students can dine wherever they want. Additionally, Housemaster 1 said that the
Student would often have lunch in her mother?s classroom. The Complainants told OCR that the
Student always ate in the cafeteria prior to the incident. On one instance, the Student informed
Housemaster 1 that she did cross paths with Respondent 2 in the hallway on November 14, one
of the seven school days in November where the Student?s attendance overlapped with at least
one of the respondent?s according to attendance records. Housemaster I asked the Student what
classes she would be attending to ensure they would not cross paths again, and asked if there was
anything else the School could do to support her.

In addition to its efforts to ensure the Student would not have contact with the respondents
pending the outcome of the investigation. OCR found the School immediately took actions to
support the Student emotionally and academically. As a result of the incident, the Student was
having dif?culty attending school and focusing in class. 011 November 13, 2013, the Student?s
special education liaison emailed the Student?s teachers informing them that the Student ?was
involved in an incident recently that has led to absences and some missed assignments. While
she has returned to school, she may not be fully ?present? and engaged in classwork." The
liaison asked her teachers to provide progress notes and to identify priorities for work
completion. On November 15, Housemaster emailed the teachers to state that the Student was
to have extensions on all assignments through the following week and that if the Student was
unable to be in class, she could meet with the special education liaison in the Learning Center or
counselors in the Clinical Suite. When the Student expressed discomfort with a student who sat
next to her in one class, the clinical counselor asked the teacher in an email on November 15 to
change all the seats in the class so the Student did not feel singled out. The Complainants shared
with OCR that when the Student returned to school on November 13, she generally spent her
time in the Learning Center or in the main room of her House, rather than attending classes. By
November 22, the School had set up a schedule for teachers to meet with the Student one-on-one
in the House conference room to go over making up work and lessons. Additionally, the School
offered counseling services to both the Student and her family.

The Complainants told OCR that other than offering the House main room for the Student to sit
in as an alternative to attending class, the School did nothing to support her or provide her with
any academic support. They told OCR the Student sat in the House main room listening to an
iPod and had to see Respondent 1, who went to the space to access a school mailbox. As
explained above, however, OCR did not find a lack of support on the part of the School. A
November 15, 2013 email from the liaison stated that the Student is welcome in the Learning
Center, the Clinical Suite, or the House, although it did not specify the main room or conference
room. Housemaster I told OCR that the Student ?knew the [House] conference room was her
safe space.? According to November 22, 2013 team meeting notes shared by the
Complainants, the Complainants stated at the meeting that they did not feel the House, which the
Complainants clari?ed for OCR meant the House main room, was a ?safe place.? According to a

Page 4 OCR Complaint No. 01-14-1 155

guidance counselor email from the same date, the team agreed that the Student would spend
November 25, 26, and 27 in the House conference room. The School told OCR that there was
possibly one time when, for approximately 30 minutes, the Student was in the main room
because of a meeting in the conference room. However, OCR found no evidence that the
Student was placed in the main room where she was likely to encounter Respondent l.
Contemporaneous emails also indicated Housemaster and others checked in with the Student
and the Complainants.

Further, at the November 22, 2013 IEP team meeting, the team determined the Student required
additional supports. The team noted that the Student reported ?not being able to focus and not
feeling safe in the building regardless if the other individuals [were] in sight.? The team
determined that as a result of the incident, the Student needed an extended evaluation outside of
the School in a therapeutic environment. The Complainants told OCR that the Student was
forced out of the School and ?punished academically? by being placed in a less academically
rigorous school. The Complainants told OCR that the School prohibited the Student?s liaison
from attending the team meeting because the School knew the liaison had the Student?s best
interest in mind and the School was fearful she would prevent the placement. However, OCR
found that the liaison had attended the November 22 team meeting, as evidenced by the signed
attendance sheet from the meeting. OCR also reviewed emails indicating that the liaison was a
key person in setting up the IEP team meeting.

In general, OCR refrains from assessing the appropriateness of substantive, educational decisions
made by an IEP team. In this case, it appeared to OCR that the School obtained and considered
appropriate information, and the needs of the Student, when it made the decision to refer the
Student for an extended evaluation. While the Student was placed in a less academically
rigorous school, the School believed it was an appropriate placement to address her emotional
and needs, which were affecting her ability to focus academically. Further, the
original referral notice to the outside placement notes that the goal was to determine what
supports the Student needed, in hopes of her returnng to the School by the beginning of the
second semester and the subsequent materials prepared by the IEP team for her continued
placement at the outside school also note the team?s hope that the Student could graduate with
her class. OCR found no evidence that the decision of the IEP team constituted an attempt to
punish the Student for the incident or reporting the incident.

Regarding the School?s investigation, on November 20, 2013, the police informed the School
that it could move forward in its investigation. Immediately the housemasters sought to collect
relevant text messages from the Student and to set up a time to speak with the respondents. Both
respondents had obtained legal representation. Respondent 1 provided a statement through his
attomey and copies of a Facebook message between him and the witness identi?ed by the
Student after the event. Respondent 2 would not cooperate with the investigation. Housemaster
2 informed his parents that Respondent 2 had the right to due process, but absent an interview,
she must act on text messages and other available evidence.

Housemaster 2 interviewed the witness who had been on Facetime with the Student during the
incident. The witness indicated she was not able to see the incident but was able to overhear the
events. The witness was also involved in a Facebook exchange with Respondent 2 after the
incident. When Housemaster 2 noticed a discrepancy between the Facebook messages and the
initial interview, Housemaster 2 interviewed the witness again. Additionally, Respondent was

Page 5 OCR Complaint No. 01-14-1155

suspended beginning November 27 and Respondent 2 was suspended beginning November 25
pending a discipline hearing.

On December 6, 2013, the School informed ReSpondent 1 by letter that he had been found to be
?an insti gator ofboth physical and sexual harassment.? The letter also explained that because of
the gravity of the conduct, the respondent would need to be separated from the School
community for a signi?cant period of time. Thus, Respondent 1 was suspended through January
1, 2014, and informed he would need to spend free blocks in supervised study and could not
participate in extracurricular activities upon his return. Additionally, he was to continue to meet
with a clinical counselor and receive education from the Mentors in Violence Prevention Group,
and it was recommended that he transition into the School?s ACE program. The ACE program is
a separate, alternative education program at the School. It provides a small student to staff ratio,
one-to?one mentoring, access to clinical supports, and counseling groups. The School also
evaluated Respondent 1 for an IEP and while he was found to qualify, the School did not ?nd
that the incident was a manifestation of his disability. Respondent ?nished the school year in
the ACE program.

Regarding Respondent 2, prior to the incident, the School was already in the process of ?nding
an outside 45-day evaluation for him. Since the School would be required under Section 504 to
complete a manifestation determination meeting following a discipline hearing and the
suspension, it decided to move forward with the evaluation, beginning on December 9, 2013, and
reconvene upon its completion. On February 28, 2014, when the evaluation was completed, the
IEP team convened and detemtined that the respondent still required a therapeutic environment
that the School could not offer. The respondent?s parents rejected the IEP team?s decision and
invoked stay put under IDEA to place Respondent 2 back at the School. Respondent 2 returned
to the School on March 10, 2014. The School did not believe the School was an appropriate
placement for him and filed for an expedited due process hearing on March 17, 2014.
Additionally, the School stated if Respondent 2 were to return to the School, he must leave any
athletic or School club event immediately afterward, be accompanied by an adult for his safety
and the safety of others, and receive counseling. On March 24, 2014, the School held a
manifestation determination hearing and determined the incident was a manifestation of his
disability. The School informed Respondent 2 by letter that he had committed an act of an
?egregious nature" on November 1, 2013, but that because of the result of the manifestation
determination, the School would not discipline him beyond the November 25 December 6
suspension he had already served. Ultimately, ReSpondent 2 committed another violation of the
student conduct code, and the School excluded him on that basis.

Following the Student?s evaluation, the Student wanted to see if she could return to the School
and visited on two days. The Complainants alleged that during her two two-hour visits at the end
of January 2014 and beginning of February 2014, the respondents were present and their friends
harassed her. The Complainants alleged that the Student reported this to Housemaster 1, who
did nothing. OCR reviewed the attendance records of the respondents and found that
Respondent 2 was at his outside evaluation during the time of the Student?s visits and that
ReSpondent was attending the ACE program, which is separate from the School, although the
Complainants told OCR that he was with the general population for six of seven blocks. Further,
the Director of Student Services informed OCR that during the Student?s visits, the Student was
accompanied by an adult at all times. While the School understood the Student?s perception that

Page 6 OCR Complaint No. 01-14-1155

classmates were looking at her, the Director reported that the attending adults did not see the
respondents or witness any harassment or retaliation. The Complainants told OCR that there was
adult accompaniment only during the second visit. The only speci?c example of harassment
during these two visits they provided was the respondents? friends ?snickering? at the Student
and a teacher calling on the Student in class when Housemaster was supposed to have informed
the teachers not to call on the Student.

The Student?s IEP team reconvened on January 17, 2014, for a mid-evaluation update and again
on February 10, 2014, and determined that based (in the evaluation results, the Student still
required a therapeutic placement. The Complainants again expressed concern that the Student
was being punished academically for the incident. However, the team determined that as she
was suffering from depression, anxiety, and PTSD, the therapeutic component of the placement
was more important than the academic rigor of the program. The team stated:

While [the Student] possesses many cognitive, academic, and athletic 
her emotional disability. . .affect[s] her ability to concentrate, participate in
classroom and produce her best quality work in on-
demand situations. In addition, [the Student] is not comfortable in larger groups
and less unstructured settings.

The IEP team suggested that the following year it would be open to integrating the Student into
the general education program if she was ready. The Complainants requested that the School
pay for an outside private placement. The team did not feel that the outside private schools
identified by the Complainants provided the appropriate services for the Student and, as noted,
OCR generally refrains from assessing the appropriateness of substantive educational decisions
made by a team of knowledgeable people following the procedural requirements of Section 504.
The Complainants told OCR that the team was not comprised of the most knowledgeable people
because, once again, the liaison was not invited to attend. However, the signed attendance sheets
indicated that the liaison attended the November 22, 2013 and February 10, 2014 team meetings,
when the team made the decisions regarding the outside evaluation and outside placement.
When OCR asked the Complainants about the liaison?s attendance, they explained that she was

excluded from the January 17 meeting and attended the February 10 meeting only after they
fought for her to attend.

Legal Standard and Analysis

Title IX and its implementing regulations, 34 C.F.R. Part 106, prohibit discrimination on the
basis of sex in education programs or activities operated by recipients of Federal financial
assistance. Sexual harassment is unwelcome conduct of a sexual nature and is a form of sex
discrimination prohibited by Title IX. Sexual harassment can include unwelcome sexual

advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual
nature, including acts of sexual violence.

When a student sexually harasses another student, the harassing conduct creates a hostile
environment if the conduct is suf?ciently severe, persistent, or pervasive to interfere with or limit
a student?s ability to participate in or benefit from the school?s program. The more severe the
conduct, the less need there is to show a repetitive series of incidents to prove a hostile
environment, particularly if the harassment is physical. Indeed, a single or isolated incident of

Page 7' OCR Complaint No. 01-14-1 155

sexual harassment may create a hostile environment if the incident is suf?ciently severe. For
instance, a single instance of rape is suf?ciently severe to create a hostile environment.

Under Title IX and the regulations, once a school has notice of possible sexual harassment
between students, it is responsible for determining what occurred and responding appropriately.
The school is not reSponsible for the actions of the harassing student, but rather for its own
discrimination should it fail to respond adequately. A school may violate Title IX and the
regulations if: the harassing conduct is suf?ciently serious to deny or limit the student? 
ability to participate in or bene?t from the educational program; (2) the school knew or
reasonably should have known about the harassment; and (3) the school fails to take appropriate
responsive action. These steps are the school?s responsibility whether the student who was
harassed makes a complaint or otherwise asks the school to take action.

OCR evaluates the appropriateness of the responsive action by assessing whether it was prompt,
thorough, and effective. What constitutes a reasonable response to harassment will differ
depending upon the circumstances. However, in all cases the school must conduct a prompt,
thorough, reliable, and impartial inquiry. If harassment is found, it should take reasonable,
timely, age-appropriate, and effective corrective action, including steps tailored to the speci?c
situation. The response must be designed to stop the harassment, eliminate the hostile
environment, and remedy the effects of the harassment on the student who was harassed. The
school must also take steps to prevent the harassment from recurring, including disciplining the
harasser where appropriate. A series of escalating consequences may be necessary if the initial
steps are ineffective in stopping the harassment.

Other actions may be necessary to address sexual harassment. These may include special training
or other interventions, the dissemination of information. new policies, andi?or other steps that are
designed to clearly communicate the message that the school does not tolerate harassment and
will be reaponsive to any student reports of harassment. The school also should take steps to

prevent any retaliation against the student who made the complaint or those who provided
information.

OCR found insufficient evidence that the School failed to and equitably respond to the
Complainants? allegations. Upon notice of the incident, the School counselor immediately
reported the incident to the appropriate authorities. The School did brie?y delay its investigation
at the request of the police but understood its responsibility to conduct an investigation
independent of the police investigation, immediately began providing interim remedies for the
Student, and resumed its investigation eight school days after it received notice of the

incident. With regard to its investigation, the School gathered all available information, including
thoroughly interviewing possible witnesses, in spite of uncooperative respondents. The School
also made a determination based on the preponderance of the evidence that the sexual
misconduct did occur. During the discipline process, the School was cognizant of the students?
Section 504 protections. Further, the School kept in mind larger community concerns by placing
limitations on the respondents even though the Student no longer attended the School.

While the School provided timely written notice of the investigation to the respondents, it did not
provide concurrent written notice to the Complainants. Rather, the School kept the Complainants

Page 8 OCR Complaint No. 01?14-1155

updated on the steps of the investigation and ensured them that the Student would not encounter
the respondents in her programing. OCR found no indication that by not providing formal
written notice, the School failed to eliminate the hostile environment for the Student.

During the course of the investigation and at request, the School issued written notice to
the respondents and Complainants on October 1, 2015. However, these notices inaccurately
stated that the School?s investigation was inconclusive. Again at request, the School

rescinded the incorrect notices and provided corrected written notice to the Complainants dated
August 24, 201?.'

Conclusion

This concludes investigation of the complaint. This letter should not be interpreted to
address the School's compliance with any other regulatory provision or to address any issues
other than those addressed in this letter. This letter sets forth determination in an
individual OCR case. This letter is not a formal statement of OCR policy and should not be
relied upon, cited, or construed as such. formal policy statements are approved by a duly
authorized OCR of?cial and made available to the public. The Complainants may have the right
to file a private suit in federal court whether or not OCR ?nds a violation.

Please be advised that the School must not harass, coerce, intimidate, discriminate, or otherwise
retaliate against an individual because that individual asserts a right or privilege under a law
enforced by OCR or ?les a complaint, testifies, assists, or participates in a proceeding under a
law enforced by OCR. If this happens, the individual may file a retaliation complaint with OCR.

Under the Freedom of Information Act, it may be necessary to release this document and related
correspondence and records upon request. If OCR receives such a request, we will seek to
protect personally identi?able information that could reasonably be expected to constitute an
unwarranted invasion of personal privacy if released, to the extent provided by law.

We thank you for your patience and apologize for the deiay in the processing of this complaint.

If you have any questions, please contact attorney Sandy Lin at {617) 289-0095 or
sandy.lin@ed.gov.

Sincerely,



Meena Morey Chandra AMM
Acting Regional Director

cc: Felicia Vasudevan

 

I The School's delay in rescinding the incorrect notices and providing the Complainants with corrected written
notice was at request pending the conclusion of investigation.