On June 28, 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) announced it had entered into a voluntary resolution agreement with the Takoma/Silver Spring Campus of Montgomery College in Maryland (the College) after an investigation into whether the College promptly and equitably responded to a complaint of sexual harassment against a professor.
The complaint initiating OCR’s review here came from a student who alleged that the College did not interview her and failed to provide her information about Title IX rights and options. OCR found the College did invite the student (and all of her classmates) to provide a written statement or participate in an interview, and also emailed all students in the class information about rights and options under Title IX, including offering information about supportive services.
OCR found the College complied with Title IX in that it conducted a prompt and equitable investigation of harassment allegations against the professor, and provided notice of the outcome to the reporting party and the respondent.
So what went wrong? OCR found the College did not provide notice to all affected students that the investigation was completed, that the investigation confirmed a hostile environment based on sex, or that the College had taken steps designed to end the hostile environment. Notice had been provided only to one student who was considered the “reporting party.”
As part of the resolution agreement, the College must:
- Notify all affected students in the professor’s class that the College completed its investigation of the complaint of sexual harassment by the professor, including the steps taken to end a hostile environment.
- Use the results of the College’s 2022 climate survey to determine next steps in light of the results of the survey. The College will provide proposed actions to OCR, as well as steps already taken in response to the 2022 climate survey, by November 1, 2023.
As always, this resolution agreement is not binding on other institutions of higher education or schools, and is specific to these particular facts. Still, Title IX professionals can think through the takeaways for their school or campus and document internal protocols for consistency. Typically, out of respect to the privacy of the parties and the process, notice of outcome is limited to the parties. This resolution may have some schools considering questions like the following:
- Who is considered a reporting party, or affected person in a discrimination or harassment incident?
- Is “reporting party” status something a witness can opt into, and if so, how are they informed about that option?
- If a participant in an interview is not considered “affected” and will not receive notice of outcome, how and when is that information communicated to them, if at all?
- Is it presumed that all witnesses to an alleged incident of discrimination or harassment are affected by the potential hostile environment, such to necessitate notice of outcome? Is the presumption based on a witness’s perceived identity?
- Should a school reach out to the witnesses to determine the impact before concluding that notice is required?
- How do these analyses change, if at all, when there are many witnesses, like in a large lecture?
Grand River Solutions subject matter experts can review your policies and practices, train your school employees who are tasked with responding to and investigating complaints, and conduct a climate survey, including analyzing the results and providing meaningful recommendations.