UN IT ED ST AT ES DEP ARTMEN T Of EDVCA TrO N Off ICE FOR CIVIL Rl GIITS J2 OLD SLIP. 26TH FLOO R NE \\' YORK. NE W YORK 100 05 T l ~I OTI I Y C. J. JlL\ NC HA RO DIR ECTOR NE W YORK OFFIC E April 24, 2014 (b )(6), (b )(7)(C) Re: Case No. 02-14-2085 Hobart and William Smith Colleges Dear !(b)(6),(b)( 7) ~: On !(b}(6}.{b){7}(C} l, the U.S. Department of Education , New York Office for Civil Rights (OCR) received the above-referenced complaint you filed against Hobart and William Smith Colleges (the Colleges) . You alleged that the Colleges failed to promptly and equitably respond to complaints of sexual violence of whic h it had notice , includin , a re ort of sexual assault mad e on beh alf of your daughter (the Student) in or around (b)(6),(b)(7)(C) , and complaints of harassment / retaliation following the sexual assault repo rt; and , as a result , students , including the Student , were subj ected to a sex ually hostil e env ironm ent (Allegation 1). You also alleged that the Colleges ' Sexual Grievance Board and/or the Colleges discriminated against the Student , on the basis of her race, by favoring one of the alleged perpetrators (who is Caucasian) and discrediting accounts of the sexual assault from the Student and other witnesses (who are biracial and/or African -American during the Colleges ' investiga tion/hearing /a ppeal process es Lastly , you alleged that the Colleges during academic year (b)(6),(b)( (Allegation 2). discriminated against the Student , on the basis of her disability (Attention Deficit Hyperactivit y Disorder/Lea rning Disab led), by initiall y disbelieving the Stud ent ' s disability status and denying the Student ' s requ es t for an audiotape and/or transcriVt of te Sexual Gri evance Board hea ring as an accommodation for her disability in or around fall (b) (Allegation 3). OCR reviewed the ·information you provid ed in your written complaint , email correspondence , docum entation submitted , as well as information you provided during a telephone conversation with OCR on March 28, 2014. Ba sed on a rev iew of this information , OCR has determined that it will investigate Allegations I and 2; however , OCR has determined that it will not investigate Allegation 3 for the rea so ns set forth below. With regard to Allegation 3, you alleged that the Colleges discriminated against the Stud ent, on the basis of her dis ab ility, by initially disb eliev ing the Student 's disability status and denying the Student ' s request for an audi otap e and/or trans cript of the Sexual Grievance Board hear ing as an acco mmodation for her disabilit y in or around fall 20 13. You acknowledged that the Colleges do The Department of Education's mission is to promote student achievementand preparationfor global competitiveness by fost ering educational excellence and ensuring equal access. Page 2 of 3 - Case No. 02-14-2085 not provide hearing tra nscript s and/o r audiotapes to the parties par · ·. · · , the hearings as a matter of cou rse. You advised OCR that on o r about (b)(6),(b)(7)(C) Stude nt requested a transcript and/o r audiotape of the hearing from the Co lleges ' attorney as an accommodation for her disability. You informed OC R that despite the Student ' s having registered previously with th ' · e of Disability Services (ODS) , in an electronic mail message (ema il) dated (b)(6 ),(b)(?)(C) , the Colleges ' attorn ey init ia lly expr essed her disbelief that the Student has a disability and advised the Student to regis ter for accommodations . with ODS to dissuade the Student from exe rc ising her right to appeal. You inform ed OCR , ~ues t and provided however, that the Colleges' attorney gran ted the Stud ent ' · . The refore , OCR the Stud ent wi th a transcript of the hear ing on or about (b)(5),(b)(?)(C) has determined that the allegation is resolved. Accordi ngly , ·ocR wi ll take no further action rega rdin g A llegat ion 3. However , as stated above , OCR w ill investigate A llegatio ns l and 2. OCR is responsible for enfo rcin g Title IX of the Educa tion Amendm en ts of 1972 (T itle IX), as amended , 20 U.S .C. § 168 1 et seq. , and its impl eme nting regulation at 34 C.F. R. Part 106, which prohibit discrimination on the basis of sex in program s and activities recei v ing financial assistance from the U.S. Depa rtm en t of Education (the Department). OCR is a lso respo nsible for enforc ing Titl e VI of the Civil Rights Act of 1964 (T itle VI) , 42 U.S.C. Section 2000d et seq ., and its implementing regulation at 34 C.F.R. Part l 00, which prohibit discrimination on the basis of race , colo r, or national origin in programs and activ ities receiving financial assistance from the U.S. Depar tment of Educa tion. The Colleges are recipients of financial assis taoc e from the Depar tm ent. Therefore , OCR has jur isdictiona l authorit y to investigate thi s complaint under Titl e IX and T itle VI. Th e reg ulati on impl ement ing Title IX, at 34 C .F.R . § I 06.71, inco rporates by refe rence 34 C.F.R . § 100.7(e) of the regulat ion impl ementin g Title VI, whic h prov ides that: No recipient or other person shall intimidate , threaten, coerce or discrim inate aga inst any indi vidua l for the purpose of interfering with any right or pri vilege secured by regu lat ions enfo rced by OCR or because one has made a comp laint , testified , assisted or participated in any manner in an inves tigat ion, proceeding or hearin g held in connection w ith a co mpl aint. Because OC R has determined that it has juri sdiction and your complai nt was filed in a timely manner, it is opening A llega tion s I and 2 for invest igation. Please note that opening Allegations I and 2 for investigation in no way impli es that OCR has ·made a determination with rega rd to their merits. During the invest igation , OCR is a neutra l fact-finder , collecting and analyzing relevant ev iden ce from you, the recip ient, and other so urces, as approp riate . OCR will ensu re that its invest iga tion is lega lly suffic ient and is dispositive of the allegations, in accordanc e with the provisions of Art icle Ill of the Case Processing Manual. 1 In an email dated October 11, 20 13, the Colleges' attorney stated that she was unaware of the Student's documented learning disabilities when she initially responded to the request for accommodations for the Student; and stated that the Colleges would provide your attorney with a typed hearing transcript of the information provided by the parties and students at the hearing. Page 3 of 3- Case No. 02-14-2085 When appropriate , a complaint may be resolved before the conclusion of an investigation after the recipient expresses an interest to OCR to resolve the comp laint. In such cases , OCR obtains a resolution agreement signed by the recipient. This agreement must be aligned with the comp laint allegat ion or the information obtained during the investigation , and it must be consistent with applicable regulations. Additional information about this voluntary resolution process may be found in the publication "OCR Complaint Processing Procedures ," which was enc losed with OCR ' s previous letter to you , acknowledging your complaint. This information is also on OCR 's website at http: // www2.ed.gov /about /offices /list/ocr/docs /ocrcpm.htrnl # III. This letter sets forth OCR ' s determinat ion in an individ ual OCR case . This letter is not a formal statement of OCR policy and shou ld not be relied upon , cited, or construed as such. OCR ' s forma l policy statements are approved by a duly authorized OCR official and made availab le to the pub lic. You may have the right to file a private suit in federa l court whether or not OCR finds a violation. Please be advised that the Colleges may not harass , coerce , intimidate, or discriminate against any individual because he or she has filed a comp laint or participated in the comp laint resolution process. If this happens, you may file anothe r complaint alleging 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 protec t, to the extent provided by law, persona lly identifiable information , which , if released, cou ld reasonably be expected to constitute an unwarranted invasion of personal privacy. OCR staff wi ll contact you with in twenty (20) clays of the date of this Jetter to discuss the comp laint resolution process. In the interim , if you have any questions , please contact Jeanette Tejada Bustos, Comp liance Team Attorney , at 646 -428-3777 or jean ette.tcjadabustos @ed .gov; or Stacy Bobbitt , Compliance Team Investigato r, at 646-428-3823 or stacy.bobbitt (@ed.uov ; or me , at 646-428-3801 or nadja .r.allen.uill @.ed.aov. Sincerely, pdj~ Afle"°Comp liance Team Leader cc UN IT ED ST AT ES D EPA RT M ENT O F ED UCA Tr ON OFFICE FOR CIVIL RIGHTS 32 OLD SLIP, 26THFLOOR NEW YORK . N EW YORK I 0005 T Ii\! OT II Y C. ,J. fl L: \ N C II A IW D IR ECTOR NE W YO RK OFFICE April 24 , 2014 Mark D. Gearan President Hobart and William Smith Colleges Office of the President 337 Pulteney Street Geneva , New York 14456 Re: Case No. 02- 14-2085 Hobart and William Smith Colleges Dear President Gearan: ! the U.S. Department of Education , New York Office for Civil Rights On !(b)(5),(b)(?)(C) (OCR) received the above-referenced complaint filed against the Hobart and William Smith Colleges (the Colleges). The complainant alleged that the Colleges failed to promptly and equitably respond to complaints of sexual violence of which it had notice , including a report of sexual assault made on behalf of the complainant's daughter (the Student) in or around !(b<(6),(b)(7)(C) I,and complaints of harassment/retaliation following the sexual assault report ; and , as a result , stndents, including the Student , were subjected to a sexually hostile environment (Allegation I). The complainant also alleged that the Colleges' Sexual Grievance Board and/or the Colleges discriminated against the Student, on the basis of her race , by favoring one of the alleged perpetrators (who is Caucasian) and discrediting accounts of the sexual assault from the Student ' s and other witnesses (who are bi-racial and/or Africa ·· ), during the Colleges ' investigation/hearing /appeal process es during academic year (b)(6 ),(b) (Allegat ion 2). OCR has determined that it will investig ate these allegations. OCR is responsible for enfo rcing Title IX of the Education Amendments of 1972 (Title IX), as amended, 20 U.S .C. § 1681 et seq ., and its implem enting regulation at 34 C.F.R. Part I 06, which prohibit discrimination on the basis of sex in programs and activities receiving financial assistance from the U.S. Department of Education (the Department). OCR is also responsible for enforcing Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. Section 2000d et seq., and its implementing regulation at 34 C.F.R. Part I 00, which prohibit discrimination on the basis of race, color, or national origin in programs and activities receiving financial assistance from the U.S. Departm ent of Education. The Colleges are recipi ents of financial assistance from the Department. Therefore , OCR has jurisdictional authority to investigate this complaint under Title IX and Title VI. 111eDepartment of Education's mission is to promote student achievementand preparationfor global competitivenessby fostering educational excellenceand ensuring equal access. Page 2 of 6 - Case No. 02-14-2085 The regulation implementing Title IX, at 34 C.F.R. § I 06 .71, incorporates by reference 34 C.F.R. § I 00.7(e) of the regulation implementing Title VI, 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 held in connection with a complaint. Because OCR has determined that it has jurisdiction and that the complaint was filed in a timely manner , it is opening these allegations for investigation. Please note that opening these allegations for investigation in no way implies that OCR has made a determination with regard to their 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 allegation , in accordance with the provisions of Article Ill of OCR ' s Case Processing Manual . Enclosed is a document entitled , " OCR Complaint Processing Procedures." This document will provide you with an overview of OCR ' s complaint evaluation , investigation, and resolution process. OCR will collect only material needed to investigate this complaint and will take all proper precautions to protect the identity of any individuals named in documents. The regu lation implementing Title VI of the Civil Rights Act of 1964 , at 34 C.F.R. § I 00.6(b) and (c) , requires that a rec ipient of federal financial assistance make available to OCR information that may ·be necessary for it to determine whether a recipient is in compliance with the regulations it enforces. This requirement is incorporated by reference in the regulation implementing Title IX, at 34 C.F . R. § I 06. 71. This information is a lso being requested pursuant to 34 C.F.R. § 99.31 (a)(3)(iii). Please submit the information listed on the enclosed data request to OCR within tvventy (20) days of the elate of this letter or OCR may conduct an onsite file review in order to obtain this information in a timely manner. When appropriate , a comp laint may be resolved before the conclusion of an investigation after the recipient expresses an interest to OCR to resolve the complaint. In such cases , OCR obtains a reso lution agreement signed by the recipient. This agreement must be aligned with the complaint allegations or the information obtained during the investigation , and it must be consistent with applicab le regulations. Additional information about this voluntary resolution process may be found in the enclosure entitled , " OCR Complaint Processing Procedures ," and on OCR 's website at http:/ /wwv,12.ed .gov/about/offices / list/ocr/docs /ocrcpm.html #l II. Please be advised that the Colleges may not harass, coerce, intimidate , or discriminate against any individual because he or she has filed a complaint or participated in the complaint reso lution process. If this happens , the complainant may file another complaint alleging 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 Page 3 of 6 - Case No. 02-14-2085 seek to protect, to the exte nt provided by law, personally identifiable information , which, if released , could reasonably be expected to constitute an unwarranted invasion of personal privacy. OCR staff will contact you within twenty (20) days of the date of this letter to discuss the complaint reso lution process. In the interim, if you have any questions, please contact Jeanette Tejada Bustos, Compliance Team Attorney , at 646-428-3777 or jeanelle.tejadabustos @.ed .go v; or Stacy Bobbitt , Compliance Team Investigator , at 646-428-3823 or stacv.bobbitt @ed.gov; or me, at 646-428-380 I or nadja.r.allen.i:.!ill@.ed.gov. Sincerely, Page 4 ufe 7 Case No. 02-14-2085 nRequest Hobart and William Smith Colleges CaseN 0 1085 Complaineu Studeur DATA DUE a) 14,2014 I'It'm'e' provide fullnwil Ilium fill' year ZIHJ 7014' ulhdi'lrixu inrlie'uled, m- .ilu/u in \t'I'l'liny lrhe/lwr any mulu'iul does no: I. k) Cepies or the Colleges' policies and procedure and/or a ot' its pracl the in>> st etiun ut' eumpluiius ur Imr' rein/a ull en the basis ofscx ln academic year. 2011 -012 701272013 and 2013 -014. Include a delalled description of lhe complaint process including each level of the process, the or the and the types ol'reeords maintained. Also, provide the names and titles uflhe Colleges' staff responsible for handling cutnplainls of liarassmeni/ussuinr on the basis of sex. al each level urilie process An 'pianalion of the means by which the Colleges lnl'ormed students. parents and employe -urthe policies and procedures ret'erred to in ltem I. above, Submit copies at all disseminated. Copies of publications that contain the Colleges' nondiscrimiltullnn notice: the Unit'onn Resource Loculor (URL) or website link for any electronic postings of the nondiscrimination notice. and a list of campus locations where the notice of nondiscrimination is physically posted. il'lmys Copies of lht: Caller; policic and procedures anti/or a or its in effect during academic years 20117201.. 2012- (JD mid 2013 UN. governitl disciplinary or corrective actions that may be by students: and the prnvis il'any. Slate whether th: Colleges conduct focus gmups/meclillgs and/Ur liulds informational sessions with the student unmen's groups, athletes. residential assistants fraternity and sorority leaders at and/or College staff regarding rights underline IX. lo report po ible violations or litle lx. and/or the Cnlleges' nbl~uliun to and equitably respond lu Title IX conipluinL. If dates ol' such events. a description of the attendees, and any materials pre nted and/or distributed The name. office address and telephone number ol'll'lc Collegcs' Title IX Conrdinalulls), lndicalc the melhod(s) by which tltis information is disseminated lo sludenls and employees. Provide copies ol'all publications/websites that contain this int'omiation. Page 5 of 6 - Case No. 02-14-2085 7. A detailed description of any trammg regarding sex discrimination , including sexual harassment and sexual assault , provided to the Colleges ' Title IX Coordinator(s) and other Colleges staff , including the Colleges ' Sexual Grievance Board. For each such training , include: a. b. c. d. the date(s) the training was provided; the names and qualifications of the individuals who provided the training; a list of the names and titles of the individuals who attended the training; and copies of any materials distributed at the training. 8. Copies of all documentation related to the reports of sexual assault, as well as reports of harassment , retaliation and a failure to provide accommodations following the alleged sexual assault , made on behalf of the Student , including but not limited to a copy of any written complaint(s) or record(s) of oral complaint(s), investigative reports , witness statements , hearing transcripts , electronic mail messages (emails) , text messages , telephone logs , and correspondence. 9. A detailed description of the steps and actions the Colleges took in response to all complaints relating to the alleged sexual assault of the Student , and all complaints of alleged harassment , retaliation and a failure to provide accommodations following the report of sexual assault , including: a. a description of the procedures employed by the Coll eges to investigate the complaints; b. a description of interim remedial measures (academic or other) provided by the Colleges to the complainant during the pendency of the investigation; c. the timeline for completion of each stage of the investigation process; cl. the types of records maintained; e. the final outcome of all investigation(s); f. the name(s) and title(s) of the Colleges staff involved in the investigation process; and g. the evidentiary standard applied by the College to determine the outcome of the complainant ' s complaints ; and h. copies of the Colleg es' Title IX grievance procedures and sex discrimination / harassment (including sexual assault) policies and procedures relied upon to respond to any complaints filed by the complainant. 1. the sex and races of the complainant, accused students , and witnesses. l 0. Copies of all documentation , including but not limited to, letters , emails , reports , notes , logs , meeting minutes , hearing transcripts , discipline records , telephone records , campus public safety records , and other external law enforcement agency records related to: a. the Colleges ' processing of the complaints filed on the Student's behalf; b. the Colleges ' handling/investigation of the complaints filed on the Student's behalf, including any notices to the parties; c. the disciplinary hearing, including any notices to the parties; d. appeals filed ; Page 6 of 6 - Case No. 02-14-2085 e. commun ications between the Co lleges and the Student (or anyone acti ng on her behalf) regarding the accused students; and f. commu nications regarding the accused students' standing at the Co lleges pending comp letion of the investigation. 11. A list of all complaints of sexual assault filed by or on behalf of students at the Colleges' campus during academic years 2011 -2012, 2012 -2013 and 2013 -2014. 12. For each comp laint identified in Item 11, provide the following: a. a detailed description of the comp laint processing procedures emp loyed; b. the length of the process; c. the name(s) and title(s) of the person(s) responsible for investigating the complaint; d. all action s taken by the Colleges in response to the concerns raised; e. the Colleges' final determination regarding the complaint , and any notice of the findings provided to the complainant; and r. the sex and races of the complainant, accused student(s), and witnesses. 13. Copies of any media maintained by the Co lleges rega rding the alleged incidents of sexual assault involving the Student and the accused students in September 2013, and alleged incidents of harassment and reta liation following the report of sexual assau lt, including print outs of pages from the Facebook accounts of the Student , the accused , and/or other members of the Colleges community; print outs of other social media ; text messages , and the Co lleges newspaper articles. 14. Any other in formation the Colleges believe will assist OCR in this investigation. 15. The name , title, telephone number and electronic designated contact person(s) for this complaint. mail address for the Colleges'