UNITED STATES DEPARTMENT OF FDUCATION Rrcion xt OFFICE FOR CIVIL RIGHTS Nose CAROL Surucananin ADMARYLAND AYERUS. Si cima WASHINGTON, Oe ama 7S SNONISCHON, BC April 6, 2015 General J.H. Binford Peay Ill, Superintendent Virginia Military Institute 201 Smith Hall Lexington, Virginia 24450 RE: OCR Complaint No. 11-14-2311 Letter of Findings Dear General Peay: This letter advises you of the outcome of our investigation of a complaint received by the Office for Civil Rights (OCR) of the U.S. Department of Education (the Department), against Virginia Military Institute (VMI) on July 16, 2014. The complaint was filed under Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 el seq. The Complainant, a VMI cadet, alleged that VMI: 1) discriminated against her on the basis of sex when it failed to respond appropriately to her grievance of alleged sexual assaulfrm and 2) retaliated ther after she filed vance bi 7 and wherferen exe OCR investigated the complaint allegations pursuant to its authority under the Title IX regulation, 34 C.F.R, Part 106, which prohibits discrimination on the basis of sex in educational programs and activities receiving federal financial assistance from the Department. The laws enforced by OCR also prohibit retaliation against any individual ‘who asserts rights or privileges under these laws or who files a complaint, testifies, or participates in an OCR proceeding. Because VMI receives financial assistance from the Department, it is subject to the provisions of Title IX and its implementing regulation. During the investigation, OCR reviewed documentation provided by VMI and the Complainant and conducted telephone interviews of witnesses. In analyzing the allegations, OCR reviewed the evidence under a preponderance of the evidence standard, meaning that OCR evaluated the evidence to determine whether it is more likely than not that VMI failed to comply with the faws enforced by OCR. For the reasons set forth below, OCR found insufficient evidence to support the allegations in this complaint The: Oxtrtment oy Educion’cmision fo promute stent ebierencat ant preparation for gobs compelaveness thy fostering educational excellence and ensuring ea access swe go Page 1 of 9Page 2 of ¢ - OCR Complaint #11-14-2311 LOF Applicable Regulatory Standards: The Title IX implementing regutation, at 34 C.F.R. § 108.31(a), provides that no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, ‘occupational training, of other education program or activity operated by a recipient which receives Federal financial assistance. Specific obligations are set forth at § 106.31(b), including a recipient's obligation to ensure that its students are not denied or fimited in their ability to participate in or benefit from the recipient's programs or activities on the basis of sex Under Title IX, colleges and universities that receive Federal financial assistance are responsible for providing students with a nondiscriminatory educational environment. Sexual harassment that creates a hostile environment is a form of sex discrimination prohibited by Title IX. Sexual harassment is unwelcome conduct of a sexual nature. ‘Sexuai harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence. Sexual harassment of a student creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student's ability to participate in or benefit from the recipient's program." OCR considers a variety of related factors to determine if a sexually hostile environment has been created and considers the conduct in question from both an objective and a subjective perspective. Factors examined include the degree to which the misconduct affected one or more students’ education; the type, frequency, and duration of the misconduct; the identity of and relationship between the alleged harasser and the subject ‘or subjects of the harassment; the number of individuals involved; the age and sex of the alleged harasser and the subject of the harassment, the size of the school, location of the \cidents, and the context in which they occurred; and other incidents at the school. The more severe the conduct, the less the need to show a repetitive series of incidents, this is particularly true if the harassment is physical. A single or isolated incident of sexual harassment may, if sufficiently severe, create a hostile environment. A single instance of rape is sufficiently severe to create a hostile environment, Once a recipient knows or reasonably should know of possible sexual harassment, it must take immediate and appropriate action to investigate or otherwise determine what occurred, if an investigation reveals that sexual harassment created a hostile environment, a recipient must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment, prevent the harassment from recurring and, as appropriate, remedy its effects. These duties are a recipient's "The applicable fegat standards described herein are more fully discussed in OCR’s 2011 Dear Colleague letter on Sexval Violence, which is avaiiablo at. hitp /lwurw2 ed gov/abowvolficesfisvocr/ett 201104 him! (April 4, 2011), for further clarification on this topic, see "Questions and Answers on Tile 1X ‘and Sexual Violence,” at http sAwww2 ed goviabouvoftices/stocs/docsiqa-201404-tile-tx pdf (April 2. 2014), See also OCR’s 2010 Dear Colleague letter on Harassment and Bullying, which is available al ‘te www2,e0, goviaboutoffice fisticerfletters/colleaque-201019. him! (October 26, 2010), and OCR's Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, at hlto.svww.ed.aoviabouvotficeslistocr/dor ide htm (January 13, 2001) Page ? of 9Page 3 of 9 OCR Complaint #11-14-2311 LOF responsibility, regardless of whether a student has complained, asked the recipient to take action, or identified the harassment as a form of discrimination. A recipient has notice of harassment if a responsible employee actually knew or, in the exercise of reasonable care, should have known about the harassment. Ifa recipient delays responding to allegations of sexual harassment or responds inappropriately, the recipient's own action may subject the student to a hostile environment. If it does, the recipient will be required to remedy the effects of both the initial sexual harassment and the effects of the recipient's failure to respond promptly and appropriately. A recipient's obligation to respond appropriately to sexual harassment complaints is the same regardless of the sex or Sexes of the parties involved. Title IX requires a schoo! to protect the complainant? and ensure his or her safely as necessary, including taking interim steps before the final outcome of any investigation Title IX requires a recipient to take steps to ensure equal access to its education programs and activities and protect the complainant as necessary, including taking interim measures before the final outcome of an investigation. The recipient should take these steps promptly once it has notice of a sexual violence allegation and should provide the complainant with periodic updates on the status of the investigation. The recipient also should ensure that the complainant is aware of his or her Title IX rights and any available resources, such as victim advocacy groups, housing assistance, academic support, counseling, health and mental health services, and legal assistance In situations where reported sexual harassment may constitute a criminal act, a recipient should notify a complainant of the right to file a criminal complaint, and should not dissuade a complainant from doing so either during or after the recipient's internal Title 1X investigation. Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexval violence does not retieve the school of its duly under Title IX to resolve complaints promptly and equitably. Recipients should not wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation and, if needed, must take immediate steps to protect the complainant in the educational setting. Any agreement or Memorandum of Understanding with a local potice department must allow the school to meet its Title IX obligation to resolve complaints promptly and equitably. Although a school may need to delay temporarily the fact-finding portion of a Title IX investigation white the police are gathering evidence. once notified that the police department has compieted its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges), the school must promptly resume and complete its fact-finding for the Title IX investigation. OCR recognizes that the length of time for evidence gathering by criminal investigators will vary depending on the specific circumstances of each case. Sexual harassment of a student by a faculty member or other school employee also Violates Title IX. If an employee who is acting (or who reasonably appears to be acting) in * The term “complainant” as used throughout this lelter refers to an individual who is the subject of alleged sexual harassment, sexual assault or other forms of sexual violence. Page 3 of 9Page 4 of 9 - OCR Complaint #11-14-2311 LOF the context of carrying out these responsibilities over students engages in sexual harassment, the recipient is responsible for remedying any effects of the harassment on the complainant, as well as for ending the harassment and preventing its recurrence. This is true whether or not the recipient has notice of the harassment ‘The Title IX regulation, at § 106.71, incorporates by reference the procedural provisions of Titie VI of the Civil Rights Act of 1964, at 24 C.F.R. § 100.7(e), which include a prohibition against retaliation because a person complained about discrimination or otherwise asserted rights under these laws Facts peRETTORTCT Ono the Complainant sf OT) ] called VMI's Inspector General (the designated Title IX tc plainant told him she had been sexually assaulted by a the night of the alleged] when| of the Complainant. After he call, the Inspector omplainant and requested a meeting for that same afternoon. When they met, the Inspector General asked the Complainant if she wanted to have a representative present af their meeting, but she declined. He advised the Complainant about a local victim advocacy agency and made an appointment for her forthe next day: VMI provided transportation for the Complainant fo the advocacy services to the Complainant, OnfETTENET] the Complainant's[HE1 ET | provided to VMI a written statement setting forth the same information that he shared with the Inspector General during their telephone call off. OC On the same day, the Inspector General met again with the Complainant, who orally confirmediX2) OX) ‘written account of the sexual assault, with the exception of a sentence that said she cried for three hours afSio Our Gag abe ee for tres hows af) THAT jedly committed the sexual assault FE fhe nape cepa [i@., ] the Inspector General contacled Ihe Complammant sever: wr needed any further assistance, Of?) XU) the Inspector General coordinated a room change ant at her request. The Inspector General also contacted Complainant’ 10 report on the status of VM’s Title IX investigation. Page 4 of 9Page 5 of 9 - OCR Complaint #11-14-2311 LOF TET ERTCT Pe fEReTTeRTCT 7 TERTET [ETT [ arorsh ‘she was given the opportunity to do so by the MSpector jeneral, fe Complainant did not provide the Inspector General the names of any witnesses or any further details about the alleged sexual assaull_ Nevertheless, the Inspect in r [the Inspector General concluded his investigation of the Complainant's sexual assault allegation, spoRTeN Page 5 of 9Page 6 of 9- OCR Complaint #11-14-2311 LOF finding that a violation of VMI's sexual harassment and sexual assault policies did not occur. The Superintendent reviewed the investigative report a finding, after which the Inspector Geng oO notes he ding ar cae Sreportthe ra Analysis* Allegation 1: VMi discriminated against the Complainant on the basis of sex when it failed to respond appropriately to her grievance of alleged sexual assault] OCR found that VMI's response to the alleged sexual assault was prompt. The Inspector ner General gonantag TAY [BRET TCT VMI provided interim, measures to protect the Complainant, and the Inspector General maintained periodic contact with the a he other evidence in support of the complaint. The Inspector General concluded his investigation on PIO. ENTE and determined, by a preponderance of the evidence, that a violation of VMI's sexual harassment and sexual assault policies did not occur. After the Superintendent concurred in the determination, the Inspector General issued written notice of the finding to the Complainant and to the ETUC Jone foe] In addition, as required by Title 1X, Vill provided the Complainant appropriate interim measures during its investigation of the sexual assault allegation and maintained periodic contac! wih the Complainant ana sbout the status of the investigation. To ensure the safe! MI community, after VM) identified thee wiper [EEL aeY_——Twithin two days of receiving axe written statement. Inspector General granted the Complainant's request for @ room change onfe or 2014. He contacted the Complainant by e-mail on Ere1 __]to assess how she was and to itional rt, VMI also granted the Compiainant's[Eier enc] reques|{ The inspector General gave the Complainant opportunities to present witnesses and televant evidence during the investigation, and applied the correct standard of proof — * We note that CGR reviewed and approved revisions to VMI’s Tile LX policies and procedures (General ‘Order 18, Discrimination, Harassment, Sexual Misconduct, and Retaliation Policy) pursuant to the resolution of a prior complaint (GR Complaint #1 1-08-2079). Page 6 of 9.Page 7 of 9— OCR Complaint #11-14-2311 LOF preponderance of the evidence - in making its investigative findings. Both the Complainant and the accused were notified in writing of the outcome of the investigation. In light of the foregoing, OCR finds that there is insufficient evidence to support the ateaoton bal fal sp that VMi failed to respond appropriately fo the grievance of alleged sexual assault oyprerce | [nes one Complai nd whenfr eer reer ‘When analyzing a ciaim of retaliation, OCR determines: 1) whether the complainant engaged in a protected activity (e.g, fled a complaint or asserted a right under a law enforced by OCR); 2) whether the school took a materially adverse action against the complainant; and 3) whether there is some evidence that the school took the adverse action as a result of the complainant's protected activity. If all these elements are present, this establishes an initial or prima facie case of retaliation. OCR then determines whether the school has a legitimate, non-retaliatory reason for its action. Finally, OCR examines whether the school's reason for its action is a pretext or excuse for unlawful retaliation. ‘The Complainant engaged in a protected activity when OCT} filed a sexual assault complaint with the VMI Inspector General and she corroborated the allegation on PeLeNreT Next, OCR examined whether VMI took materially adverse actions against The Complainant that were causally connected to her protected activity. For an action to be materially adverse, it must cause lasting and tangible harm or reasonably have a deterrent effect on future protected activity; mere unpleasant or transient incidents usually are not considered adverse, In[P° 17 VMI put the Complainant's|” FO ENTE) pes enrer ‘continues pending final resolution of all the Complainant's [°? Sr jis a materially adverse action. That this action occurred after Complainants protected activity could suggest a causal connection. Page 7 of 9Page 8 of 9- OCR Comptaint #11-14-2311 LOF OCR found no evidence of pretext in VMI's putting the Complainant's] With regard to the requirement for OR VMI treated the Complainant similarly to other cadets [PRE ec ia Within the past three years, there have been two other cadets who lemic requirements|°!”? REL ee ref CHET in complaints with VMI. in the other); neither of these cadets had filed any forever no cadets have been allowed" 7 while a [ER ORE) In addition, with regard to agademio requirements, Vili permitted the Complainant[om mir) Prereirer Furthermore, VMi permitted thePPRTCEY PRT ORTeT foreRTNTCT this was more favorable to the Complainant than VMI's usual practice when PRLETET the Comptainant forf WT AVET [revert fa matenally adverse action. That this action occurred affer the Complainant's protected activity could suggest a causal connection. fe fERETTONTET fre wire Further, ‘OCR found no evidence of pretext in the TTT [E_Jhad evidence OTS Joelieved indicated that the Complainant was the foo enn but of Wir did not [until her Title IX investigation was completed. Thus, although the Complaman lafter she raised the sexual assault allegation, thei and had already a lanant agehT OTT _—_| The Tming of these events suggests that the ultimat OCR reviewed files showing that [PP the past thtee years for similar kinds cadets| [Ev had filed any complaints with VMI Based on the above analyses, OCR finds that there is insufficien it evidence to support the aliegation that VMs treatment of the Complainant with regard tof Ox PEEERET Jand[EXT ET _Jwas in retaliation for the sexual assault complaint filed with VMI Conclusion nineteen other cadets within and none of these other This concludes OCR’s investigation of this complaint. This letter should not be interpreted to address VMI's compliance with any other regulatory provision or to address any issues other than those addressed in this ietter. This letter sets forth OCR's determinations 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. OCR’s formal policy statements are approved by a duly authorized OCR official and made available to the Page 8 of 9Page 9 of 9 - OCR Complaint #11-14-2311 LOF public. Compiainants may have the right to file a private suit in federal court whether or not OCR finds a violation Please be advised that VMI may not retaliate against an individual who asserts 2 right or privilege under a law enforced by OCR or who files @ complaint, testifies, or participates in an OCR proceeding. 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 identifiable information that could reasonably be expected to constitute an unwarranted invasion of personal privacy if released, to the extent provided by law. We appreciate the cooperation that VMI extended to OCR during this investigation. If you have any questions, please contact one of the OCR attorneys assigned to the case, either Amy Williams at (202) 453-5933 or via email at Amy.Williams2@ed.gov, or Kristi Bleyer at (202) 453-5901 or via email at Kristi Blever@ed.gov. Sincerely, AP a) ek wo Alessandro Terenzoni ‘Team Leader, Team District of Columbia Office Office for Civil Rights cc. M. Elizabeth Griffin, Senior Assistant Attomey General, Education Section (via email) Page 9 of 9