THE UNIVERSITY OF VIRGINIA RESOLUTION OF TITLE IX INVESTIGATION AT THE UNIVERSITY OF VIRGINIA To: The Honorable Ame Duncan, U.S. Secretary of Education Ted Mitchell, Under Secretary, Department of Education Catherine Lhamon, Assistant Secretary, Office for Civil Rights From: The University of Virgi Re: Resolution of Title IX Investigation at the University of Virginia Date: August 20, 2015 ‘The University of Virginia writes to express grave concems about the proposed resolution of the Title IX compliance review opened by the Office for Civil Rights (OCR) at the University of Virginia more than four years ago. On May 20, 2015, members of the Metro office initiated a negotiation process to conclude the long-delayed investigation. Since May, the University has worked diligently and in good faith to reach a resolution in a manner that is supported by the facts, the law and the equities. Unfortunately, we have not been able to resolve this to date. We share OCR’s commitment to eradicating sexual and gender-based harassment and violence and are deeply engaged in fostering a learning, living, and working environment free from harassment and discrimination. We are gratified by OCR’s recognition of the significant efforts! put forth by the University in the development of its current policy and procedures, which OCR has indicated it considers to be “really terrific,” “outstanding.” and a “model” for other institutions; in providing consistent care and support to students who came forward informally and formally: and in conducting prompt, thorough, and high quality investigations. ‘Over the course of OCR’s four-year review, we have shown our dedication, candor and willingness to improve. Given our steadfast commitment to this critical issue, we are especially dismayed to find ourselves at impasse with OCR at this time. ‘The University is troubled by the fundamental lack of due process throughout OCR’s review, including OCR’s choice to hold open office hours in the immediate aftermath of the Rolling Sione article (and before its retraction), the Assistant Secretary’s decision to comment negatively about the University’s efforts in the Rolling Stone story during an open compliance review, the Department's refusal to grant a limited FERPA waiver to allow the University to respond to Rolling Stone’s accusations about the University’s process, and most importantly, OCR’s practice of withholding notice of findings until after a resolution agreement is signed. These practices not only undercut the most fundamental concepts of due process, they also create "The University has outlined its comprehensive and institution-wide efforts to implement policies, procedures, practices, and programming that embrace 2014 federal guidance from both OCR and the White House, ‘through its responses to OCR’s data requests, multiple in-person meetings with OCR in the spring of 2015, and in a ‘written leter from the University tothe Chie? Attomey of the Meo Office of OCR on June 27, 2015. See, 2g. Letter to Ralph A. Suris from Roscoe C. Roberts (June 27, 2015), Page 559 of 1820a practical challenge for us in running the University. Over the next week, 23,000 students will be returning to Charlottesville to begin a new academic year the fact that we have not been given the courtesy of reviewing OCR’s written findings makes it impossible for us to prepare our University community adequately for what lies ahead in our process with OCR. This predicament is uniquely damaging to us, as our community is still recovering from Rolling Stone's reckless journalism and now-discredited story. Ultimately, the opacity of OCR’s process undermines the core of what we are trying to accomplish as educators dedicated to eliminating sexual and gender-based harassment and violence, preventing their recurrence, and addressing their impacts, both individually and systemically. ‘Our concems fall into two categories: first, a broad concern regarding the fairness of OCR’s compliance review process and ultimate findings; and second, specific concems about the legal, factual, and equitable underpinnings of OCR’s findings (verbally previewed by OCR over the course of our negotiations) ‘Our broad concer about the fundamental fairness of OCR’s approach to compliance reviews stems from the basic lack of due process: no notice of findings and a structural flaw that denies institutions the opportunity to challenge OCR’s findings outside of the enforcement action process. Consistent with its current practices, OCR does not share the written Letter of Findings with a recipient prior to negotiating a resolution agreement. The first, and only, opportunity for the University to view the letter is after it has been released publicly and there is no ability to challenge the written findings before they are issued (or after, ifthe resolution agreement has been signed). OCR’s enforcement action process presupposes both a Title IX violation and the recipient's unwillingness to take remedial actions, leaving institutions that would be willing to sign resolution agreements and take remedial actions with no opportunity to challenge OCR’s process or findings. Given our institutional commitment to eradicating sexual and gender-based harassment and our willingness to take remedial actions, we are left in a very difficult position: OCR’s process forces institutions either to enter blindly into a resolution agreement without evaluating or even knowing the findings, or to reject the resolution agreement and prompt an enforcement proceeding for failure to comply with Title IX in order to get any opportunity to dispute the findings (even when, as in this case, we are prepared to accept all proposed compliance remedies). The process of withholding notice of findings until after a resolution agreement is signed is inconsistent with longstanding OCR guidance that states “OCR always provides the school with actual notice and the opportunity to take appropriate corrective action before issuing a finding of violation.” (2001 Revised Sexual Harassment Guidance). Consistent with our support for the mission of OCR, and in keeping with our commitment to the provisions of the Resolution Agreement, the University agrees to all outlined terms. We are prepared to sign the Resolution Agreement subject to the following condition OCR will provide the University of Virginia with all legal and administrative rights and remedies to contest the legal or factual basis of the findings irrespective of whether the University has signed the Resolution Agreement. Many of the provisions in the Resolution Agreement mirror existing guidance and are components of an effective Title IX program. The University has already initiated, and in most instances, completed, the majority of the remedies outlined in the Resolution Agreement. To 2 Page 560 of 1820sign the Resolution Agreement without the above two, however, would require the University to resolve the investigation without actual notice of the findings, leaving the University with no recourse to challenge the findings through appropriate legal or administrative channels. Our second concer stems from the findings OCR has orally previewed, and our questions about the legal and factual foundation for many of the findings (noting that, without the benefit of seeing findings in writing as outlined in our first concern above, we are not in a position to judge which findings are conceming and which we believe are fair). ‘The gravamen of our concern is OCR’s proposed finding concerning the existence of a hostile environment at the University through the spring of 2014. As we have discussed in our many meetings to date, this finding is not supported by the law, the facts, or the equities.” Further, this unsupported finding will significantly undercut the University’s efforts to date, despite recognition and praise by OCR, and chill reporting for our students, employees, and community members. We respectfully request that you reconsider this finding. We note that during our initial discussions, OCR orally previewed a “non-negotiable” finding that the University had a current hostile environment. During subsequent conversations, the University voiced concerns that this finding was unsupported, as OCR’s compliance review did not include review of policies, practices, or the University’s response to reports of sexual or gender-based harassment or violence from the current academic year, 2014-2015. Following concems identified by the University as to the factual foundation for a finding ofa current hostile environment, OCR recognized the error in the inclusion of this time frame in its finding and agreed to remove the finding of a current hostile environment. Nevertheless, OCR maintained they would find a hostile environment for the time period from the beginning of the review in 2011 through the end of the 2013-2014 academic year. Given OCR’s willingness to consider the facts, the equities, and the scope of OCR's investigation and adjust the unsupported current hostile environment finding, we are hopeful that OCR will further adjust this remaining finding, rather than allow an unsupported and legally indefensible inference that a ho: iment existed for all University community members. OCR’s proposed finding of a environment does not square with the law, the facts, or the equities and, as such, does not serve our students or broader community. The University requests that OCR remove the finding of a hostile environment, or in the alternative reach no finding on this issue under the voluntary resolution provisions (section 302) of the Case Processing Manual. In light of the inadequacy of ‘OCR’s investigation, and the resulting insufficient factual foundation to support a conclusion that a hostile environment existed, OCR’s finding cannot stand. Our resolve in contesting the hostile environment finding is exceeded only by our resolve in committing to the remedies outlined in the proposed Resolution Agreement, many of which have already been completed. 1. Executive Summary ‘Asa University, we are deeply committed to creating and maintaining a living, learning, and working environment free from harassment and discrimination. As outlined in a detailed The Liniversity and OCR have met in person or spoken by teleconference on April 1S, 2015, May 20, 2015, June 4, 2015, June 30, 2015, July 14, 2015, August 3, and August 11, 2015, Each of these meetings reflected ‘g0od faith discussion etween the University and OCR. Page 561 of 1820overview provided to OCR, the University has engaged in comprehensive and system-wide efforts designed to eliminate sexual and gender-based harassment and violence, prevent their recurrence, and address their impacts individually and systemically. Since 2011, and independent of OCR, the University has carefully tracked OCR’s guidance and quickly adapted its policies, procedures, and practices to comport with the evolving guidance. We have also taken significant steps to educate our community members about current University policies, practices, and efforts, including how to identify, report, and redress sexual and gender-based harassment and violence under the University’s grievance procedures; the role of the Title IX Coordinator and other key implementers; and detailed information about individual and University responsibilities under Title IX. We have also continued to expand our community partnerships and participated in climate surveys and other assessments designed to inform our ‘ongoing efforts. Indeed, in our meetings to date, OCR has orally recognized many of these efforts and has communicated their intent to acknowledge the University’s positive efforts, including support for students and a recognition of the University’s policy as a “model” policy. This positive recognition stands in stark contrast to the November 2014 Rolling Stone article that unfairly thrust the University of Virginia into the national spotlight based on sensational, irresponsible, and shoddy journalism. This letter sets forth our concems about the Title IX compliance review conducted at the University over a four-year time petiod. While we have concerns about many of OCR’s proposed findings, we are particularly concerned about OCR’s unsupported and unwarranted finding of a hostile environment at the University. We ask OCR to reconsider the findings in this matter for two reasons: first, OCR’s compliance review process is deeply flawed, and second, a finding of hostile environment is not supported by the law, the facts, or the equities. The potential impact of this proposed finding, shared orally by OCR in multiple meetings, is, significant. Accepting such a finding for the sake of expedient resolution of this matter would be a disservice to the University’s students and employees, the University’s extensive efforts to date, and the integrity of the University as a whole. It also has the potential to significantly undercut the University’s prevention and response efforts, and chill reporting for students, employees, and community members. Ata high level, the OCR compliance review process, and the guidance upon which it is based, is deeply flawed. Our broad process concerns include the following: ‘+ Deviation from Federal Law: First, while OCR purports to use the same definition of hostile environment as set forth in Supreme Court guidance, OCR’s application of the definition of hostile environment deviates from federal law. While the United States Supreme Court has always premised Title IX liability on an institution's deliberate indifference to actual knowledge of sexual harassment that is so severe, pervasive, and objectively offensive that it deprives victims of access to educational opportunities or benefits, the standard used by OCR in enforcement actions requires a lesser showing: that an institution failed to respond to constructive, rather than actual notice of sexual harassment. In addition, to date, OCR has defined hostile environment based on sexual harassment in the individual context only, and the application of the definition as proposed here is an improper and unprecedented expansion of the legal defi 4 Page 562 of 1820Here, OCR has not only failed to conduct the proper Title IX individual analysis articulated and required by the Supreme Court before finding a hostile environment in any of the individual cases at issue, it has improperly expanded the definition of hostile environment to reach an unsupported inference of a hostile environment for all campus community members. OCR’s use of a different enforcement standard may have been permissible under the prior enforcement strategy, as set forth in the 2001 Guidance, because OCR’s practice and written policy was always to provide institutions with notice and an ‘opportunity to correct potential Title IX violations before issuing a violation Those protections, however, no longer exist. OCR has changed its enforcement strategy and no longer provides institutions with such notice ‘+ Improper Application of Significant Guidance: Second, OCR is holding the University (and all recipients nationwide) to recently promulgated “significant guidance.” These documents — including the April 4, 2011 Dear Colleague Letter (2011 DCL) and April 20, 2014 Questions & Answers on Title IX and Sexual Violence (2014 Q&A) — do not carry the force of law because they did not go through the notice and comment process required. This is particularly troubling given the concerns raised about the improper expansion and application of the hostile environment definition. Further, in February 2015, OCR changed its enforcement strategy as announced in the 2001 Guidance through quiet revisions to its Case Processing Manual (CPM) without notice. + Retroaetive Application of Quasi-Legal Guidance: Third, OCR is retroactively applying the quasi-legal guidance that has resulted from its expansion of guidance documents. OCR has taken the position that the University should have known and applied concepts from the 2014 Q&A to student sexual misconduct cases handled in 2011, 2012, and 2013 — years before the guidance was written + Failure to Provide Due Process Protections: Fourth, OCR’s administrative procedures and practices deny the University (and all recipients nationwide) basic due process safeguards. OCR does not share with institutions either individual complaints or the basis for compliance review, which significantly impacts the institution's ability to gather relevant information and address the merits of the complaint. In addition, OCR’s current discretionary practice of not sharing a written Letter of Findings with the recipient before the recipient is asked to sign a resolution agreement does not comport with traditional concepts of notice and good faith negotiation, or comply with the most basic requirements of procedural due process This lapse in protocol and basic faimess requires a recipient to blindly sign a resolution agreement without the benefit of reviewing or testing the underlying findings — findings of great consequence to institutions, their students, and their ability to advance this important work. This practice also severely limits the recipient's ability to make an informed and reasoned judgment to exercise its fiduciary obligation to the community and the institution. The refusal to share the Page 563 of 1820written Letter of Findings, is not only unfair, but also ineffective.’ In short, institutions are left with the choice to either enter resolution agreements blindly and ‘without an opportunity to test or evaluate the support for OCR’s findings, or reject the resolution agreement and risk losing federal funds. ‘No Legal Basis and Insufficient Factual Foundation for Conclusion of Hostile Environment In addition to these concerns, all of which generally render OCR’s conclusions legally ‘questionable, OCR lacks a legal or factual basis for concluding that a hostile environment existed for all 21,000 students and more than 12,000 employees at the University of Virginia. Such a conclusion would require, at a minimum, a thorough investigation of individual, articulable complaints or an extensive review of a random, representative sampling of all community members. Neither occurred here. Instead, the quality and thoroughness of OCR's review is grossly inadequate and calls into question the reliability of any findings, especially the hostile environment finding. OCR’s investigation was superficial and intermittent: OCR was on Grounds for a total of ten days over four years, and had no interaction with the University at all for months at a time including one hiatus of seventeen months with no communication. During the review, OCR considered a fraction of the available information in University records and from University personnel. OCR. met with a statistically insignificant percentage of the population (less than 1% of students and employees). Of the two occasions OCR spoke with University community members, one visit wwas in the immediate wake of the Roiling Stone article during the media frenzy before Rolling Stone retracted its article. OCR’s format was designed to gather anecdotal information shared in “open office hours.” The other one-day opportunity OCR had to speak with student groups was: in 2012 at a time when OCR was focused on records collected for the school years of 2008, through 2011 (pre-2011 DCL). Based on our knowledge of the quality of OCR’s investigation, the evidentiary foundation is insufficient to conclude, as OCR must to support its hostile environment finding, that all members of the University community actually perceived discrimination on the basis of sex and subjectively viewed the environment as so severe, pervasive and objectively offensive that it deprived victims of access to educational opportunities or benefits. OCR’s factual findings cannot exceed the depths it probed during its four-year compliance review. Equitable Considerations: OCR ignores requests for assistance with 2011 policy and fails to take timely and correetive action during a four-year review, yet finds University out of ‘compliance ‘We note that on August L1, after repeated requests by the University forelaity on how OCR would express the hostile environment finding in the Letter of Findings, OCR agreed to read tothe University six excerpted Sentences that ostensibly capture the whale of the references to hostile environment. Those six sentences, however. exist in a vacuum, and without understanding the legal or factual foundation, the University remains in en untenable position with respect to its obligations to serve students and make principled and informed decisions about the underlying facts upon which the finding is based. Page 564 of 1820Further, the equities do not support OCR’s finding of a hostile environment. ‘Throughout OCR’s four-year review, the University has diligently sought to incorporate and comply with evolving federal guidance as soon as it was issued to colleges and universities across the country. ‘There is no question that the University would have been responsive to real-time, ‘contemporaneous feedback from OCR. This responsiveness is evidenced in the University’s independent efforts responsive to the evolving guidance and its ongoing communications with OCR. Notably, on May 3, 2011, 30 days after the issuance of the 2011 DCL, the University provided OCR with a copy of its revised Policy and Procedures for Student Sexual Misconduct Complaints (2011 Policy) and specifically requested technical assistance to ensure Title IX compliance prior to implementation. Despite acknowledgement of that request and the promise that the University’s request was “forwarded to the appropriate staff member for review,” OCR never provided that assistance. To the disappointment of a vested implementation team at the University, who were open to incorporating any constructive feedback, OCR never provided any substantive feedback or shared any concerns during the course of its review. Yet now, four years later. OCR proposes to make findings of non-compliance related to the University’s 2011 Policy, and to the University’s practices under that policy. Ifthere were concems about the environment at the University, OCR’s failure to share compliance concerns with the University during the review, and its radio silence for nearly one and a half years of that review, contributed to any such environment and allowed issues to persist unabated for a four-year period, under OCR’s watch. OCR bears responsibility for take any timely corrective action or directing the University to do the same, particularly given that the University explicitly asked for that direction. Equitable Considerations: Assistant Secretary for Rolling Stone Story during an open compliance review 1 Rights comments negatively in Finally, to avoid significant and irreversible damage to the University’s core values, institutional integrity, and ability to serve its students effectively, OCR has an obligation to ily decotle yo findings fom the Roling Stone account. RTE] BHT Tat perception was inflamed by comments from the Assistant Secretary for Civil Righis suggesti ‘that the University was not taking its compliance review seriously. In response to the article, and in keeping with the University’s commitment to student welfare and its Title IX obligations, the University immediately engaged in critical self-assessment — and an independent and objective external legal review — to evaluate its handling of the student report identified in the article and its current policies, procedures, and practices. ‘That self-assessment has continued unabated since December, even as the facts of the underlying account have been roundly debunked. Notably, however, the University has been precluded by the federal government [EX. OX) ] pore ECT Page 565 of 1820response that demonstrated a textbook application of OCR guidance about how to balance a complainant's agency and autonomy with broader institutional obligations to safety. In light of this context, OCR has a duty to speak objectively and precisely in its Letter of Findings to avoid further perpetuating an unfair and biased perspective cast by Rolling Stone, This is particularly critical in light of OCR’s public comments in the Rolling Stone article that suggest prejudgment of the University during the agency's ongoing compliance review and call the objectivity of OCR’s findings into question. As a portent of the potential negative implications of a finding of a hostile environment, Rolling Stone is now citing these comments in defense of a defamation lawsuit filed against the magazine by Associate Dean of Students Nicole Eramo as support for the underlying article’s premise that the University grossly failed to respond to issues of sexual violence on Grounds.° In light of this nexus, allowing an unsupported finding of hostile environment to stand will improperly bolster the now-diseredited Rolling Stone article. More importantly, it will significantly undercut the University’s prevention and response efforts, and chill reporting for students, employees, and community ‘members. OCR’s goal to eradicate sexual and gender-based harassment and violence is laudable — it is a mission shared by educational institutions across the country, including the University of Virginia. To the extent that OCR's efforts are not perceived as fair, reliable, ot legally sound, however, OCR undercuts its own effectiveness and undermines its ability to achieve meaningful ‘change. Institutions may comply for the sake of compliance, but the result is expedient chee! of the boxes rather than meaningful opportunities for climate and cultural change. This is a disservice to all who are deeply committed to these critical issues, IL Overview of Evolving OCR Guidance and Practices Prior to 2011, OCR was often a collaborative partner with colleges and universities, consistent with its commitment to “provid[e] technical assistance to help . .. covered entities understand their obligations under Federal civil rights laws and obligations." OCR's 2007 Revised Sexual Harassment Guidance (2001 Guidance) emphasized the importance of discretion and judgment in addressing allegations of sexual harassment, noting that: depending on the circumstances, there may be more than one right way to respond. The important thing is for school employees or officials to pay attention to the school environment and not to hesitate to respond to sexual harassment in the same reasonable, ® ramo v, Rolling Stone, LLC, No, 3:15-¢6-00023 (W.D. Va.), Bx. to Answer (ECF No. 27) (filed July 16,2015) “1111S, Case Resolution Manual for Civil Rights Investigations (2009). Available at 8 Page 566 of 1820commonsense manner as they would to other types of serious misconduct.” Under this lens, enforcement efforts since 2001 were guided by the principle that, “OCR always provides the school with actual notice and the opportunity o take appropriate corrective action before issuing a finding of violation.”* Indeed, given the complexity of the issues involved, this isa fair and appropriate enforcement strategy that inures to the benefit of the institution and OCR to reach collaborative resolutions Since 2011, however, higher education has seen a significant shift in OCR’s enforcement practices. That shift has brought OCR under attack on three fronts, all of which threaten to undermine the effectiveness of the current enforcement strategy. First, OCR has promulgated new guidance over the past four years without following the proper process for rulemaking. These guidance documents include the April 4, 2011 Dear Colleague Letter (2011 DCL), which styled itself as a call to action for institutions to review their policies and implement changes as needed. Another guidance document was the April 29, 2014 Questions & Answers on Sexual Violence (2014 Q&A). In addition, President Obama convened a White House Task Force, which released its first report on April 29, 2014: Nor Alone: The First Report of the White House Task Force to Protect Students From Sexual Assault. On April 24, 2015, OCR also issued a Dear Colleague Letter on Title IX Coordinators and an accompanying Title IX Resource Guide.’ These documents, some of which have been deemed significant guidance documents, stand in sharp contrast to the 2001 Guidance, which was promulgated with appropriate notice and the opportunity for public comment. Second, OCR has significantly expanded its enforcement efforts, accepting a greatly increased number of new complaints related fo sexual misconduct in the post-secondary context. From FY2012 to April 8, 2015, OCR received 288 sexual violence complaints.'* Almost half (123) ofthese came in FY 2014, and, as of April 8, 2015, OCR was on course to receive a similar number of complaints in FY2015.'' On average, OCR opens investigations into about 65% of the sexual violence complaints it receives, in addition to initiating proactive * 2001 Guidance at iii. As noted inthe discussion on evaluating a complainant's request for confidentiality, it is not inappropriate for a school to exercise judgment in determining how to proceed when a complainant explicitly asks that no aetion be taken. In these instances, a school is offen between a rock and a hard place - move forward and risk further traumatizing a fragile complainant, chilling future reporting, and eroding trust inthe provess, or accede to the complainant's request and risk recurrence of harassing conduct. * 1d at iv (emphasis added). ° There were many additional Dear Colleague Letters issued during this time frame related to specific enforcement priorities, including eters addressing bullying and hazing etalition, and pregnancy "See Latter from Catherine E, Lhamon, Assistant Secretary for 28,2015) a2. 1 Rights, to Sen, Barbara Boxer (Apr "ud Page 567 of 1820reviews.'? Equally important, OCR has acknowledged a political enforcement priority in responding to sexual violence complaints, in that agency practice requires that any sexual violence complaint received will trigger a broader review of policies, systems, and cases over @ three-year period. At the same time, OCR has been reluctant to resolve sexual violence claims through traditional forms of resolution previously available (early complaint resolution (201) and voluntary resolution (302) under OCR’s Case Processing Manual), instead, since April 2014, finding every school out of compliance. And, as of April 2014, OCR shifted its long-term practice regarding confirmation of open investigations and now publicizes a weekly list of all active investigations. This practice, which is unique to OCR, does not comport with the protocols of other state or federal investigating agencies. The practice also subjects recipients to negative attention and public scrutiny without any threshold evidentiary determination that the concerns in the complaint might be founded. In other words, the recipient is publicly indicted simply based on the uttering of the complaint. This exponential increase in the influx of new complaints has precluded OCR from timely resolution of the complaints. As U.S. Senators Tim Kaine, Mark Warner, Dianne Feinstein, Al Franken, and Amy Klobuchar raised in correspondence to the Department of Edueation in December 2014, OCR has been unable to complete investigations in a timely or prompt manner, leaving many cases languishing for years without resolution.'? Recently, OCR acknowledged that its “staf-to-complaint ratio has become dangerously imbalanced, jeopardizing OCR’s capacity to fulfill its mission effectively.”'* While OCR’s staffing level has declined in recent years, the number of complaints filed with OCR has inereased steadily since approximately 2000, culminating in 9,950 complaints in FY2013 and 9,989 in FY2014."° Asa result, the average duration of a sexual violence investigation exceeded OCR’s target of 180 days ‘every year since at least 2009." In fact, the average duration of a sexual violence investigation in the post-secondary context, where the investigation resulted in a substantive closure, was 1,469 days in FY2014, and OCR still had 146 open sexual violence investigations (including 112 investigations of post-secondary institutions) as of April 28, 2015.'’ The impact of OCR’s delay (on educational institutions ~and the individual complainants they seek to serve ~ is tremendous. ‘The number of investigations has negatively impacted the quality and precision of OCR’s efforts. In many instances, complainants have completed their education and are no longer actively enrolled by the time OCR concludes its review. Campuses are left, in some instances, with no end to political turmoil and angst for students and administrators, while the OCR review remains 2 yd at3, wi fed “ OCR, Protecting Civil Rights, Advancing Equity: Report to the President and Secretary of Education (April 2015) a9, available ar hips / wwe. gov i io psscrtary-of- tas, "id at 2-3. Pia a3, 10 Page 568 of 1820‘open for significant periods of time with litle to no visible action to the institution or the complainants. And in some instances, when OCR does speak to these difficult issues, they avoid the more difficult findings that would inure to the recipient’s benefit. Third, OCR’s current administrative procedures and practices fail to provide schools with basic due process protections. OCR’s practice of not sharing the complaint, the basis for initiating a compliance review, the facts relied upon for the findings or a proposed letter of findings, fails to provide sufficient notice to the recipient of potential areas of non-compliance, either during the investigation or in the resolution process. In four short years, the surge of additional requirements promulgated by OCR and the increase in federal enforcement efforts has spurred a paradigm shift in institutional responses across the nation. In their efforts to comply, colleges and universities have taken tremendous initiative to revise policies and procedures, expand training and education programs, create full- time positions, and dedicate significant resources to developing or enhancing existing Title IX programs. These initiatives are laudable for all of us, as they bring informed and much-needed aitention to the issue of campus sexual assault. We are concerned, however, about the underpinnings of OCR’s enforcement strategy and compelled to communicate our reservations about what we, and many others, perceive as over reaching by the federal government." In the interest of fairness and equity, we share these concerns with you directly and hope that you will receive them with the professional respect and courtesy with which they are intended. We will return to each of these points later in this letter, as they impact the legal, factual, and equitable arguments set forth in support of our request that OCR reconsider the proposed hostile environment finding. III. Procedural History ‘This section contains a high level overview of the procedural history of OCR’s review. the evolving state of OCR guidance, and the University’s efforts to date. This timeline may be helpful in following the narrative below:"” June 25, 2010 Notice of Individual Complaint (11-10-2086) April 4, 2011 Dear Colleague Letter May 3 & 24, 2011 University provides Proposed 2011 Sexual Misconduct Policy to OCR to review for compliance with Title IX "There has been a growing national dchate in the media, the courts, and on college campuses about the overreach of OCR’s significant guidance in the 2011 DCL and 2014 Q&A. Concerns have been expressed about the ‘erosion of dae process, and recent federal court opinions have reversed Title IX outcomes that were conducted in ‘accordance with Title IX guidance. ° In this timeline, black text indicates procedural history of OCR’s review, blue text indicates guidance from OCR, and red text indicates the publication and subsequent retraction ofthe Rolling Stone article WW Page 569 of 1820June 30, 2011 July 15, 2011 July 15, 2011 September 2, 2011 February 27-29, 2012 March 23, 2012 March 30, 2012 May 14, 2012 June 22, 2012 July 10-11, 2012 July 11, 2012 August 1, 2012 August 29, 2012 October 16-17, 2012 May 13, 2013 May 31, 2013 June 19, 2013 April 29, 2014 November 19, 2014 November 20, 2014 Notice of Compliance Review (11-11-6001) Notice that OCR has closed Individual Complaint (11-10- 2086) and incorporated the issue raised in that complaint into the Compliance Review First Data Request (spanning 08-09, 09-10, 10-11 & 2004 report) First Data Production OCR’s First Site Visit (to review 08-09, 09-10, 10-11 & 2004 report) Second Data Production ‘Third Data Production OCR Request for Additional Information Fourth Data Production OCR’s Second Site Visit OCR Request for Additional Information Fifth Data Production Sixth Data Production OCR's Third Site Visit OCR Request for Additional Information Seventh Data Production OCR Request for Additional Information about New Programs or Initiatives Questions & Answers on Title IX and Sexual Violence Rolling Stone Article OCR Request for Additional Information Related to Rolling ‘Stone Article and New Policy Draft Page 570 of 1820November 20-21, 2014 Eighth Data Production December 1-3,2014 OCR’s Final Site Visit December 5, 2015 Rolling Stone issues a retraction of the article” December 12,2014 Ninth Data Production April 15, 2015 Meeting with OCR at the University’s Request and Tenth Data Production June 27, 2015 University Letter to Ralph Suris (Eleventh Data Production) June 30, 2015 ‘Meeting with OCR and Twelfth Data Production On June 25, 2010, nine months before the 2011 DCL, OCR notified the University of Virginia that it had accepted an individual complaint for investigation (11-10-2086)."' The 2011 DCL was issued on April 4, 2011, without calling for public comment or following the proscribed rule-making process. ‘The University took immediate steps to incorporate the concepts identified in the 2011 DCL. On May 3, 2011, less than 30 days after the 2011 DCL, the University issued a revised policy and procedures for public comment and forwarded the draft policy to Secretary of Education Ame Duncan with the following request: We are requesting a careful review of the attached document to censure that the University of Virginia is in compliance with recent OCR guidance. Given your request for immediate compliance [with the 2011 DCL], we intend to finalize and adopt the policy and procedures soon after the public comment period ends on May 20, 2011.7 ‘The Department of Education, through Edgar Mayes, Director of Correspondence and Communications Control Unit for the Office of the Secretary. promptly replied on May 4, 2011, informing the University that “the message has been forwarded to the appropriate staff member for review. ‘ww rollingstone.com/culture/news/a-note-to-our-readers-201441205: see also Rolling Stones investigation: "A failure that was avoidable,” htp:/www.cisorgiinvestigationolling_stone_investigation.php. One of the issues identified inthis complaint concerned the application of clear and convincing standard of proof. By July 2011, the University adopted the preponderance of evidence standard frst identified in the April 2011 DCL. Email correspondence from Vice President and Chief Student Airs Officer Patricia Lampkin to the Honorable Ame Duncan, May 3, 2011 ® Email correspondence from Edgar Mayes to Patricia Lampkin, May 4, 2011 B Page 571 of 1820(On May 24, 2011, having had no further response from OCR, the University again sought technical assistance prior to the implementation of the policy. In a follow up email to Mr. Mayes, the University wrote: ‘Thank you for acknowledging my prior e-mail correspondence, and for forwarding our proposed sextal misconduct policy revisions to the appropriate OCR staff member for review. Our public comment period ended on May 20. We are now in the final stages of our review process. We continue to welcome OCR’s full review of our proposed policy revisions. We would particularly appreciate hearing from the appropriate staff member regarding our proposed final revisions to the privacy section of our policy. 1 have referenced our proposed re-write of that section below. We want to be certain this section complies with the requirements of Title IX, FERPA, and the Clery Act. I would be grateful if you could help us obiain OCR’s prompt response to this particular inquiry.” OCR never responded or provided any guidance as to the University’s compliance concerns with the proposed 2011 policy. Instead, one month later on June 30, 2011, OCR notified the University that it was ‘opening a compliance review (11-11-6001).”* Shortly thereafter, on July 8, 2011, having had no feedback from OCR, the University implemented the Policy and Procedures for Student Sexual Misconduct Complaints (2011 Policy), believing it was in compliance with the 2011 DCL and governing laws in effect at the time. ‘The University produced its first set of data to OCR on September 2, 2011. ‘The data production included the 2011 Policy and a comprehensive set of information about University policies, procedures, and practices. OCR conducted its first site visit in late February 2012, eight months after initiating the compliance review. Both the University and OCR worked diligently through the late winter of 2011, and spring and summer of 2012. During that time, the University produced documents on at least five additional occasions, and OCR conducted a second site visit in mid-July 2012. In response to the University’s inquiry about how it should frame the nature of OCR’s review and the purpose for OCR’s upcoming interviews with identified University officials, OCR wrote: OCR’s work with UVa is a result of a proactive review identified by OCR, in part to take a look at UVa’s new procedures and how % Email correspondence from Patricia Lampkin to Edgar Mayes, May 24, 2011 * On July 15, 2011, OCR clased the individual complaint and incorporated the issues raised in the individual complaint ito the compliance review. Page 572 of 1820they have been implemented thus far, and not the result ofa complaint filed with OCR. OCR is required to conduct periodic reviews of recipients, and we do so each year. We calll both complaints and reviews “cases.” In July 2012, OCR requested additional information, which the University supplied in August 2012. OCR conducted a third site visit in mid-October 2012. More than seven months later, in May 2013, OCR requested additional information, which the University promptly provided. There was a final communication from OCR on June 19, 2013, in which OCR offered an apology for having “not been in touch for a bit” and requesting any information that the University wanted to share about new programs or initiatives. Between June 19, 2013, and November 20, 2014, there was no contact from OCR. During this time frame, however, as has been described in prior correspondence, the University continued its significant efforts to incorporate OCR guidance.”” On April 29, 2014, OCR released the Questions & Answers on Title IX and Sexual Violence, and the White House released Not Alone: The First Report of the White House Task Force to Protect Students From Sexual Assault. The University took immediate steps to implement key provisions of the 2014 Q&A and the Not Alone Report. The University used the Not Alone Report to shape the University’s active project plan and strategic efforts in the following categories: Identifying the Problem, Preventing Sexual Misconduct, and Responding Effectively When Sexual Misconduct, Occurs. Significant achievements during this time frame include: ‘* conducting an institution-wide climate survey through the Association of American Universities (AAU); ‘+ hosting a national conference, “Dialogue at UVA, Sexual Misconduct Among College Students”; + adding a Prevention Coordinator position; # developing formal training modules for students to enhance existing programming: ‘+ engaging students in prevention strategies: implementing bystander intervention programs: launching awareness and marketing campaigns (Not on Our Grounds and #HOOSGotY¥ ourBack); Email correspondence from Samantha Shofar to Susan Davis, July 6,2012. This same characterization of the University of Virginia compliance review as proactive appeared in subsequent communications, including a ‘community-wide email OCR asked the University to send: “The Office for Civil Rights (OCR). the civil rights| tenforcement arm of the U.S. Department of Education, has been conducting compliance reviews throughout the ‘country as part of ts proactive civil compliance activities. The University of Virginia has been chosen for such a review under Title 1X of the Education Amendments of 1972 by the District of Columbia OCR.” (Email correspondence dated October, 15, 2012). The language was also incorporated in the OCR Notice of Witness Rights provided tothe University to distribute to administrators: “Each year, OCR is mandated by statute to conduct, several agency-intiated reviews of recipients of Federal funds, to ensure compliance with the laws OCR enforees. (As provided by OCR to the University in email eorrespondence dated July 6, 2012) 2 See, e.¢. Leter to Ralph A. Suris from Roscoe C. Roberts, June 27, 2015, 15 Page 573 of 1820implementing a policy, Reporting by University Employees of Sexual Misconduct ‘Students, that outlined the reporting responsibilities of University employees;”* #5 part of the new Reporting Policy, implementing a formal Evaluation Panel process to evaluate a complainant's request for confidential ‘conducting training and education of all University employees as to their responsibilities as responsible employees; and ‘hiring two full-time investigators in the Office of expand investigative capacity. ial Opportunity Programs to On November 19, 2014, Rolling Stone published a salacious, libelous, and defamatory article chronicling one student's account of sexual assault at the University. The article addressed the open OCR compliance review, which, as noted above, the University had repeatedly been told was a proactive review periodically undertaken by OCR. Rolling Stone addressed the review in the context of a September 2014 University Board of Trustees meeting where Dean of Students Allen Groves was asked to provide an update to the board about the longstanding investigation. Rolling Stone reported: [Dean Groves] affirmed that while like many of its peers UVA was under investigation, it was merely a “standard compliance review.” He mentioned that a student’s complaint from the 2010-11 ‘academic year had been folded into that “routine compliance review.” Having downplayed the significance of a Title IX compliance review — which is neither routine nor standard — he then elaborated upon the lengths to which UVA has cooperated with the Office of Civil Rights’ investigation, his tone and manner so reassuring that the room relaxed.” Rolling Stone took issue with Dean Groves’ wholly accurate characterization (that was directly based on what the OCR investigative team wrote to the University)" and accused Dean Groves of having “downplayed the significance of a Title IX compliance review — which is neither routine nor standard.”*’ When this encounter was shared by the reporter with OCR. the Assistant Secretary for Civil Rights was quoted as saying, “Nothing annoys me more than a school not taking seriously their review from the federal government about their civil rights obligations.” ‘The Assistant Secretary's comment, which did not accurately reflect the significant University > This policy was based on the sample confidentiality policy included as part of the Not Alone White House Task Force Report. ® Sabrina Rubin Erdely, A Rape on Campus, ROLLING STONE, Nov. 19, 2014, a 77 Email correspondence from Samantha Shofar to Susan Davis, uly 6,2012. See also FN 26 for ‘addtional references. vi yy, iM. 16 Page 574 of 1820efforts or the responsive and collaborative relationship between the University and OCR throughout the investigation, demonstrated an improper reliance on shoddy journalism, a bias against the University, and an abuse of discretion to comment publicly in the midst of an ongoing investigation where no conclusions had yet been reached. ‘The remark disregarded what the OCR investigative team had repeatedly acknowledged as good faith efforts of hard-working, caring, and informed administrators, and made a mockery of the University’s good faith efforts to incorporate all guidance and White House advisory direction and meet all of OCR’ requests, in a timely and efficient manner.** Notably, in the Rolling Stone article, the Assistant Secretary for Civil Rights characterized the compliance review in far more negative terms, stating, “They are targeted efforts to go after very serious concerns.” and “We don’t open compliance reviews unless we have something that we think merits it." ‘This characterization had never been shared with the University, and like most institutions of higher education, the University took OCR at its word that a compliance review was routine, periodic, or proactive, rather than a harbinger of significant concerns by OCR. The impact of the Assistant Secretary's comments on the University community cannot be overstated ~ in the aftermath of the not yet discredited Rolling Stone article, and public condemnation by OCR even before the review was completed — who could possibly trust the University administration? Further, how could the University trust the objectivity of OCR’s review? On November 20, 2014, the day after the article, OCR, for the first rime after seventeen ‘months of silence, immediately contacted the University to request additional documents related to two students referenced in the article and to schedule campus focus groups with interested students. The University immediately produced the responsive documents, and on December 1- 3,2014, days of the Rolling Stone article and at the height of hysteria on Grounds, OCR conducted its final site visit. Meanwhile, debunking of the Rolling Stone article continued to build, and on December 5, 2014, Rolling Stone issued a retraction. Coincidentally, consistent with its practice to seek community engagement and feedback on critical issues, the University had planned to release a draft of a newly revised policy on November 19, 2014. Even in the wake of the Rolling Stone article, the University maintained its plan to release the policy for public comment. The draft policy sought to incorporate the April 2014 Q&A and new legal requirements under the Violence Against Women Reauthorization Act of 2013 (VAWA). During the public comment period, the University received nearly 600 comments. Those comments tracked the mood of the campus following the Rolling Stone article. ‘Comments received early in the comment period sought reforms ftom the perspective of a victim, while comments received later, after the article had been retracted, addressed due process considerations from the perspective of the accused. While anecdotal. this dramatic flip flop in ® White it is possible the reporter misquoted these remarks or took them out of context, when provided the opportunity to correct them, the Assistant Secretary for Civil Rights declined to do so. rents-off See Tootnate 120 for een. Washington the relationship beset ‘OCR and Rolling Stone. Sabrina Rubin Erdely, 4 Rape on Campus, ROLLING STONE, Nov. 19, 2014, at 71 7 Page 575 of 1820the nature of the concems expressed about this issue underscores the need for our federal enforcement agency to speak with a steady, informed, neutral, and balanced voice —_a voice premised upon objective and impartial evaluation of the facts and informed by a nuanced understanding of the complexity of these issues, not a voice that stridently pursues a unilateral agenda without concem for accuracy or the exercise of professional discretion, ‘On March 30, 2015, the Universi an interim umbrella policy, procedures for investigation and resolution, and resource guides.** In adopted a comprehensive set of documents, including addition, the University updated the reporting policy and training and education guides. On. April 15, 2015, at the University’s request, we met with OCR to provide an in-person update as to current University policies, procedures, practices, and initiatives. We also shared a robust timeline and set of documents for the case underlying the Rolling Stone article. In light of those facts and the evidence about the University’s appropriate response in that matter, we expressed ‘our concerns about whether the OCR findings would incorporate any specific discussion of the case underlying the Rolling Stone article. If OCR declined to speak to the University’s appropriate response in that matter, we requested that OCR decouple its findings in that case from its overall conclusions. IV. _OCR’S Proposed Finding of a Hostile Environment at the University of Virginia Does not Square with the Law, the Facts or the Equities ‘On August 11, 2015, after repeated requests from the University as to the specific framing of the findings, and in particular, the finding as to hostile environment, OCR agreed to share specific excerpts from its Letter of Findings. The excerpts were shared without context or framing This proposed hostile environment finding that the University hinges on the conclusion that potential inadequacies in the way the University responded to sexual and gender-based harassment and violence complaints actually created a hostile environment that affected all students and employees, regardless of whether they were aware of sexual harassment or discriminatory conduct of any sort. That finding does not square with the law, the facts, or the equities. A. Legal Considerations OCR’s application of the definition of hostile environment sexual harassment is, inconsistent with federal case law, and the resulting shift in the enforcement standard was not properly promulgated as a rule with the force or effect of law. The resulting impact is that the University is being held to a standard that does not have the force or effect of law. Moreover, OCR’s administrative procedures and practices fail to provide the University with basic due process protections. 1. Deviation from Federal Law The policy and procedures were finalized on July 1, 2015, 18 Page 576 of 1820In Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) and Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the United States Supreme Court interpreted how an educational institution may violate Title IX under civil lability standards. In Davis, the Court held: ‘We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Following Davis and Gebser, OCR sought to revise its 1997 Sexual Harassment Guidance, 62 FR. 12034 (Mar. 13, 1997), and published a notice in the Federal Register for comments, 65 F.R. 66092 (Nov. 2, 2000)."” One comment suggested that OCR “provide distinct definitions of sexual harassment to be used in administrative enforcement as distinguished from criteria used to maintain private actions for monetary damages.”"* OCR disagreed, explaining that “the definition of hostile environment sexual harassment used by the Court in Davis is consistent with the definition found in the proposed guidance.”"* According to OCR, even though “the terms used by the Court in Davis are in some ways different from the words used to define hostile environment harassment in the 1997 guidance, the definitions are consistent.” Further, OCR noted, “Both the Court's and the Department's definitions are contextual descriptions intended to capture the same concept — that under Title IX, the conduct must be sufficiently serious that it adversely affects a student's ability to participate in or benefit from the school’s program.”*! ‘The Supreme Court defines hostile environment sexual harassment as “so severe, pervasive. and objectively offensive that it can be said to deprive the victims of access to the educational ‘opportunities or benefits provided by the school." Similarly, OCR considers whether “conduct ofa sexual nature is sufficiently severe, persistent, or pervasive to limit a student's ability to Participate in or benefit from the education program to ereate a hostile or abusive educational environment” from both an objective and subjective perspective.” Third, the Supreme Court requires that the funding recipient act with deliberate indifference to sexual harassment of which 526 US, 629, 650 (1999), ” While OCR’s 2001 Guidance was subject to notice-and-comment, it was not published as arule in the Code of Federal Regulations. ™ 2001 Guidance, atv (Jan 19, 2001). i * 2001 Guidanee, at v-vi Jan. 19, 2001), aay avis, $26 USS. at 650 (emphasis added). © 2001 Guidance at vi (quoting Sexual Harassment Guidance, 62 Fed. Reg. 12034, 12041 (Mar. 13, 1997)) 19 Page 577 of 1820the recipient has actual knowledge.’ OCR does not apply the deliberate indifference standard in enforcing Title Ix. Indeed, OCR has expressly acknowledged that its enforcement standard for Title IX differs from the Supreme Court’s standard articulated in Davis,“° and explains: While the Supreme Court in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) requires deliberate indifference by the recipient to ‘severe and pervasive’ harassment of which a recipient had actual knowledge to establish liability for damages under Title IX, shortly after those decisions were issued, OCR clarified in its 2001 Guidance that a recipient's failure to respond promptly and effectively to severe, persistent, or pervasive harassment of which it knew or should have known could violate Title IX for administrative enforcement.” Further, OCR expressly states that the “standard for administrative enforcement of Title IX ... is ifa school knew or reasonably should know about ... harassment that creates a hostile ‘environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects."“* This standard appears only in guidance documents and is not a legislative rule with the force and effect of law. Importantly, the 2001 Guidance acknowledged that OCR’s use of a different standard than the Supreme Court for sexual harassment hostile environment was acceptable because OCR’s enforcement model included a safeguard: OCR would always provide institutions with notice of, and an opportunity to correct, potential violations. The 2001 Guidance noted, “[T]he process of administrative enforcement requires agencies such as OCR to make schools aware of potential Title IX violations and to seek voluntary corrective action before pursuing fund termination or other enforcement mechanisms.” But OCR has since removed that safeguard. In February 2015, OCR changed its enforcement strategy as announced in the 2001 Guidance through quiet revisions to its Case * Davis, 926 US. a 650. * 2001 Guidance atv. “ 526 U.S. 629, 650 (1999), © OCR Letter of Findings to Royce Engstrom, President, Univ. of Montana, $n.8 (May 9, 2013) (emphasis added), 2011 DEL. pd. * 2001 Guidance isi (emphasis added); see also id. at iv (“OCR always provides the school with actual notice and the opportunity to take appropriate corrective action before issuing a finding of violation”) id. at 10 ‘[Ulnder OCR’s administrative enforcement, recipients always receive actual notice and the opportunity to take appropriate corrective action before any finding of violation or possible loss of federal funds.” 20 Page 578 of 1820Processing Manual (CPM) which, unlike the 2001 Guidance, was not subject to notice and public comment. The CPM now notes: “Where OCR has obtained sufficient evidence to support a finding under CPM subsection 303(a) (insufficient evidence) or CPM subsection 303(b) (violation) with regard to any allegation(s), OCR will not resolve the allegation(s) pursuant to CPM Section 302, but will proceed in accordance with the appropriate provisions set forth in CPM Section 303.”*° OCR’s change in enforcement strategy has resulted in a regulatory overreach. OCR is issuing formal findings of Title IX violations to institutions without first giving institutions the opportunity to take reasonable corrective action as previously provided for in the 2001 guidance. COCR has continued to recognize that in order to find a hostile environment, the conduct must be sufficiently serious, persistent or pervasive (under both an objective and subjective standard) that it limits or denies an individual’s educational opportunities.*" In the 2014 Q&A, OCR explained the application of this standard in the context of Title IX enforcement: A school violates a student's rights under Title IX regarding student-on-stucent sexual violence when the following conditions are met: (1) the alleged conduct is sufficiently serious to limit or deny a student's ability to participate in or benefit from the school’s educational program, ic. creates a hostile environment; and (2) the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.” Thus, there are three critical elements: 1) that a hostile environment actually existed in the underlying report or complaint; and, 2) that the school had notice of the hostile environment; and, 3) that the school failed to take prompt and effective steps in response. Only ifall three factors are present can a school be found in violation for allowing a hostile environment to continue. Here, because of the broad-based nature of a compliance review, OCR did not conduct individual analysis as to whether a hostile environment existed for any of the individual complaints reviewed. In other words, consistent with the Supreme Court definition, as set forth in the 2001 Guidance, and again in the 2014 Q&A, the underlying conduct must still meet the Supreme Court definition of sexual harassment hostile environment - that is, that “the harassing conduct is sufficiently serious to deny or limit the student’s ability to participate in or benefit © U.S, Department of Education Office for Civil Rights, Case Processing Manual (rev'd February 2015). p. 20 *' see, e-¢, OCR Letter of Findings to Gen. 1H. Binford Peay II, Superintendent, Virginia Military Institute (May 9, 2014). 2014 QA atl 2 Page 579 of 1820from the program.”** It is only after that standard is met that the institution is required to take prompt and effective action to eliminate, prevent, and address the hostile environment, In other words, if there is no underlying sexual harassment hostile environment, the institution has nothing to remedy. In the context of a compliance review, OCR does not conduct assessments of each individual complaint to determine the presence or absence of a hostile environment based on the conduct as reported to the University. This is a critical first step (or condition precedent) to reaching a subsequent finding that the University’s action or inaction created or allowed a hostile environment to continue. While OCR may properly make a finding of non-compliance with Title IX based on its, cursory review of those cases —e.g., the University failed to implement a prompt and equitable response to the complaint — an individual case review is necessary to identify the existence of a hostile environment. The 2014 Q&A explicitly states: Ifa school delays responding to allegations of sexual violence or responds inappropriately, the school’s own inaction may subject the stucent to a hostile environment. If it does, the school wil also be required to remedy the effects of the sexual violence that could reasonably have been prevented had the school responded promptly and appropriately.** Here, OCR also failed to conduct any analysis to determine if action (or inaction) by the University actually subjected any individual student to a continued hostile environment. In other words, even assuming arguendo that a hostile environment existed, OCR has done no individual assessment to confirm whether that hostile environment may, in fact, have been remedied by the University’s actions. Simply put, OCR has no legal foundation to find a hostile environment in the absence of any individualized findings as to any conduct at issue. Significantly, OCR has overreached yet another step further. OCR failed to conduct the required investigation and legal analysis of individual cases of alleged harassment. Further OCR failed to conduct the required investigation and legal analysis to determine whether the University created or continued a hostile environment based on identified compliance concerns. OCR also improperly extrapolated from individual cases where there was no investigation a finding of a hostile environment, ostensibly campus-wide, This approach compounds error upon error, resulting in a legally unsupported finding of hostile environment at the University. This approach also misleads the public and campus communities into believing that OCR’s finding of a hostile environment is premised on a factual legal analysis (“conduct of a sexual nature is * 2001 Guidance, p.12. See also 2014 Q&A, A-3, p.1 (“As discussed more fully in OCR's 2007 Guidance, OCR considers a variety of related factors o determine ifa hostile environment has been created: and also considers the conduct in question from both a subjective and an objective perspective. Specifically. OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim's position, considering all the circumstances, ‘The more severe the conduct, the les need there isto show a repetitive series of neidents to prove a hostile environment, particularly ifthe conduct is physical. Indced, a single or isolated incident of sexual violence may create a hostile environment.”) 2108 Q&A, Q.A-5,p.3 22 Page 580 of 1820with appropriate review and public participation, accessible and transparent to the public, of high quality, and not improperly treated as legally binding requirements.” OCR has designated the 2011 DCL and 2014 Q&A as significant guidance documents, According to OCR, these guidance documents are not law, nor are they intended to add requirements to applicable law. Nevertheless, they purport to provide information and examples to inform educational institutions about how OCR evaluates compliance with legal obligations under Title IX.°° Many of the concepts in OCR’s significant guidance documents address implementation and practical matters. They provide general expectations about an institution’s response in the form of “shoulds,” but do not provide specific standards of care or, for that matter, a clear rubric by which an institution may measure its efforts. The expansion of OCR’s significant guidance documents has resulted in a complex labyrinth of quasi-requirements. As the AGGP have warned, “experience has shown, that guidance documents also may be poorly designed or improperly implemented” and “may not receive the benefit of careful consideration accorded under the procedures for regulatory development and review.” In the context of an unrelated regulatory agency, one federal court noted: ‘The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in regulations. One ‘guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations. eu, © See 2011 DCL atm. 1. 72 Fed. Reg, 16 (Jan. 25, 2007), Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000) (holding that an EPA guidance document “significantly broadened” a prior rule and therefore should lave been subject to notice and comment), pz Page 581 of 1820‘The same process has led to a current compliance environment under OCR that is interpretive at best. OCR’s rubric goes far beyond the “musts” of the law and implementing regulations and strays into the “shoulds” of the guidance documents. For example, many institutions comply with the requirements of the implementing regulations: they promulgate a notice of non-discrimination, designate a Title IX coordinator, and have prompt and equitable grievance procedures. While the first two requirements are fairly self-evident, what constitutes prompt and equitable has become fodder for significant variations in interpretation across the country. Each of these concepts ~ prompt and equitable — has been a moving target as OCR has focused on the implementation of the grievance procedures. Most recently, we have observed a schism between the enforcement philosophy of regional offices and the national office that has impacted the prompt and equitable resolution of OCR reviews. The regional offices, who work most closely with the documents, the personnel, and the facts, have evidenced decreasing autonomy in reaching findings without explicit approval from headquarters. While OCR has couched this change as a move towards consistency in findings, since April 2014, every publicly released Letter of Findings has resulted in a finding of non- compliance. In addition, many investigations that have long been deemed complete by regional offices have yet to see any forward-moving action by OCR. Moreover, voluntary resolutions, while once favored, have become increasingly difficult to secure in light of recent changes to OCR’s Case Processing Manual, which now require a finding, even before the conclusion of an investigation.” In short, guidance documents, which in some instances expand or contravene Title IX case law, do not provide adequate notice to a funding recipient of federally imposed conditions that are binding. Title IX is legislation enacted pursuant to Congress's authority under the Spending Clause, and the legitimacy of Congress’s power “to legislate under the spending power rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.""“* The Supreme Court insists that “Congress speak with a clear voice” and recognizes that “there can, of course, be no knowing acceptance [of the terms of the putative contract] ifa State is unaware of the conditions [imposed by the legislation] or is unable to ascertain what is expected of it. Congress set forth a procedure to promulgate legislative rules for funding recipients to © This neswork of “shoulds" appears to form the basis of OCR’s assessment thatthe University $0 inadequately handled sexual harassment complaints that i transformed the entire University intoa hostile environment © OCR’s Case Processing Manual a revised in Febmuary 2015, now notes: “Where OCR has obtained sufficient evidence to support a finding under CPM subsection 303(a) (insufficient evidence) or CPM subsection 303(b) (violation) with regard to any allegation(s), OCR will not resolve the allegation(s) pursuant to CPM Section 302, but will proceed in accordance with the appropriate provisions set forth in CPM Section 303.” U.S. Department of Education Office for Civil Rights, Case Processing Manual (rev'd February 2015), p. 20. Penninrst State Sch, & Hosp. v. Halderman, 451 USS. 1,17 (1981), © Davis, 526 US. at 640 (quoting Pennhurst 451 U.S. at 17). 25 Page 582 of 1820receive notice of federally imposed conditions that are binding.”” OCR cannot circumvent this process and expect a funding recipient to ascertain what is expected of it. Indeed, because of the interpretive elements of the current compliance environment, any experienced outside consultant ~ or OCR — could review any institution's policies, procedures, and practices and find that the institution, for one reason or another, was not in compliance with Title IX. We need look no further than recent resolution agreements that have found current non-compliance based on discrete provisions of policies and procedures. As an example, in the Letter of Findings resolving OCR’s investigation at one institution, OCR made a finding of non- compliance, noting that “changes are necessary fo ensure the safety of” students based on the following: ‘= policies and procedures do not make clear that interim measures (including academic adjustments and housing changes as necessary) are not only available but will be provided; ‘* policies and procedures state that the Title IX Coordinator will make a determination of whether the University has jurisdiction over allegations of conduct that occurred off campus, rather than state that the policy covers all allegations of off-campus sexual harassment/violence that have effects in the University’s educational sett ‘+ policies and procedures have inappropriate restrictions on the ability of the parties to discuss the investigation and proceedings with others (including friends) who may provide them with support and/or assistance during the process; and + policies and procedures do not state that the processing of any related matters (such as other issues arising under the student code of conduct) will not delay the prompt resolution of a complaint.” It's difficult to understand how these elements, each of which could fairly be characterized as nuances in language, phrasing, and interpretation, impact overall compliance, or for that matter, student safety in the context of a school’s good faith and comprehensive efforts to embrace its Title IX goal to eliminate, prevent, and address the effects of sexual and gender-based harassment and violence. ‘These examples strongly suggest a compliance rubric based upon an overly technical application of guidance that by its very nature does not have the force of law In general, courts look to several factors to determine whether an agency has issued a substantive rule under the guise of an interpretive rule or statement of policy, which are exempt from notice and comment under 5 U.S.C. § 553(b)(3)(A). Neither an interpretive rule nor a PSUSC. $553. "See Press Release 1 Department of Education Finds Tus Universty im Massachusets In Flolation of Tile IXfor is Handling of Sesual Assault ana Harassment Complaints (Ape. 28,2014), Jw. ed. gov! vers wot 26 Page 583 of 1820statement of policy “ha[s] the force and effect of law” or “imposes new rights or duties.””” A valid interpretive rule “remind[s] affected parties of existing duties” and is “based on specific statutory provisions,” while a substantive rule is “based on an agency’s power to exercise Judgment as to how best to implement a general statutory mandate. > Similarly, courts recognize that under the APA’s “general policy statement” exception, an agency’s guidance cannot establish a “binding norm.””* To test whether a “general policy statement” is “finally determinative of the issues or rights to which itis addressed,” courts probe (1) whether the policy statement imposes any additional rights or obligations, and (2) whether the policy statement leaves the agency free to exercise discretion.’ Under the latter inquiry, an agency’s assertion that its guidance is not binding does not immunize a rule from notice and comment requirements if the agency’s actions indicate that it intended those receiving the guidance to be bound.”® OCR’s actions indicate that it intends schools to be bound by the 2011 DCL. Although OCR characterizes the 2011 DCL as “a significant guidance document” that does not “add_ requirements to applicable law,””’ OCR improperly enforces the standards therein with the force and effect of law. Thus, OCR treats its guidance documents as “controlling in the field . . . in the same manner as it treats a legislative rule (and] ... bases enforcement actions on the poli interpretations formulated in the document.” Indeed, OCR has consistently applied the standard for a hostile environment articulated in the 2011 DCL to determine whether an ‘educational institution is in compliance with Title IX.’”* (Chen Zhow Chat v. Carroll, 48 F.3d 1331, 1340 (4th Cir. 1995) (citing rm Mining Congress v. Mine Safety & Health Admin, 995 F.26 1106, 1109 (D.C. Cit. 1993)}; Jerri 's Ceramic Arts, Inc. v. Consumer Product Safety Comm'n, 874 F-2d 205, 207 (Ath Cit. 1989), Jerri’, 874 F.2d at 207; Am, Mining. 98 F.2d at 1110 (quoting United Tech. Corp v. EPA, 821 F.2d ‘714 (DC. Cir. 1987), % Chen Zhou Chai, 48 F.3d at 134] (“A cule is a general statement of policy iit does not establish @ binding norm and leaves agency officials free to exercise their discretion.” Consol. Edison Co. of NY. v. FERC 315 F.3d 316, 323 (D.C. Cit. 2003); Amer. Bus. Assoc. v. United States, 627 F.24 525, $29 (D.C. Cir. 1980). % Amer. Bus , 627 F.2d at $29 (quoting Pacific Gas & Elec. Co, v. FPC, $06 F.2d 33, 38 (D.C. Cir. 1974) ® See US. Telephone Ass'n v. FCC. 28 F.3d 1232, 1333 (D.C. Cir. 1994) (invalidating guidelines forthe imposition of fines on FCC licensees where the FCC “reiterated 12 times that it retained diseretion to depart” from the guidelines, but the “schedule of fines [had] been employed in over 300 cases... and] only one [case] plausibly reflected the agency's exercise of diseretion) 2011 DCL at I n.t (2011), ™ Appatachian Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C. Cir. 2000}; see also United States ¥ Mitchell, 39 F-3d 468, 470 (4th ir. 1994) (quoting Chrssler Corp. v. Brown, 441 US, 281, 301-02 (1979). ” OCR Letter of Findings to Martha C. Minow, Dean, Harvard Law School, 34 (Dee. 30, 2014) (hereinafter “Harvard Law letter"); OCR Letter of Findings to Dr. R, Gerald Turner, President, Southem Methodist University, 2-3 (Dee. 11, 2014) (hereinafter “Southem Methodist University letter”); OCR Letter of Findings to Christopher L., Eisgruber, President, Princeton University, -3 (Nov. 5, 2014) (hereinafter “Princeton letter"); OCR Letter of Findings to Dr. Michael V. Drake, President, Ohio State University, 3 (Sept. 11, 2014) (hereinafter “Ohio State letter"); OCR Letter of Findings to Gen. JH. Binford Peay IM, Superintendent, Virginia Military Institute, 2-3 (May 9, 2014) (hereinafter “Virginia Military Institute letter"; OCR Letter of Findings to Anthony P. Monaco, President, Tufts University, 2-3 (Apr. 28, 2014) (hereinafter “Tufts ltr"), 27 Page 584 of 1820‘The fallacy here is that OCR may not avail itself of the exception to the notice-and- comment rulemaking requirement for interpretive rules and statements of policy,” and then apply its interpretive rules and statements of policy in guidance documents with the force and effect of law.*' For guidance documents “to have the force and effect of law they must first be “substantive” or ‘legislative-type’ rules, as opposed to ‘interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.’"*? Accordingly, OCR may not enforce its standard for hostile environment sexual harassment articulated in its guidance documents unless and until OCR properly promulgates this standard as a legislative rule in accordance with the rulemaking process." 3. Retroactive Application of Quasi-Legal Guidance OCR’s shifts in the scope and content of its guidance and enforcement schemes have made it difficult for schools to predict their compliance mandates. The inequitable result is that OCR has held schools, including the University, accountable for failing to comply with guidance and enforcement interpretations that did not yet exist. A prime example is the guidance regarding how to evaluate a complainant's request for confidentiality. In the 2001 Guidance, OCR wrote that the scope of a “reasonable response” by a school “may depend upon whether a student ... reporting harassment asks that the student’s name not be disclosed to the harasser or that nothing be done about the alleged harassment.”** OCR instructed schools to: discuss confidentiality standards and concems with the complainant; inform the student that a confidentiality request may limit the school’s ability to respond; inform the student that Title IX prohibits retaliation and that the school will take steps to prevent and address retaliation; and to take all reasonable steps to investigate and respond to the complaint consistent with a student's request not to be named, so long as it does not prevent the school from responding to the harassment and preventing harassment of other students. OCR also explained that a school “should evaluate the confidentiality request in the context of its responsibility to provide a safe and non-discriminatory environment for all students,” by considering the following factors: “the seriousness of the alleged harassment, the age of the student harassed, whether there have been other complaints or reports of harassment against the alleged harasser, and the rights of the accused individual to receive information about the accuser and the allegations if a formal proceeding with sanctions may result.”** SUSE. § 553(0)3)A). © Supra note 18, © Mitchell, 39 F.3d at 470 (quoting Chrysler Corp., 441 US. at 301-02) 8, US. § 553. * 2001 Guidance at 17 fd a7. "1d, a 7-18. 28 Page 585 of 1820Most importantly, OCR noted that it “enforces Title IX consistent with the federally protected due process rights of public school students and employees” and that “ifa student, who was the only student harassed, insists that his or her name not be revealed, and the alleged harasser could not respond to the charges of sexual harassment without that information, in evaluating the school’s response, OCR would not expect disciplinary action against an alleged harasser.*” OCR concluded that “other means may be available to address the harassment” and that there are “steps a recipient can take to limit the effects of the alleged harassment and prevent its recurrence without initiating formal action against the alleged harasser or revealing the identity of the complainant. OCR reiterated this guidance in the 2011 DCL, which stated that, “Schools also should inform and obtain consent from the complainant . . . before beginning an investigation.”*? OCR explained that, “If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take ail reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation.” OCR recognized that if “a complainant insists that his or her name or other identifiable information not be disclosed to the alleged perpetrator” the school’s “ability to respond may be limited.”*' As in the 2001 Guidance, OCR directed the school to evaluate such a request “in the context of its responsibility to provide a safe and nondiscriminatory environment for all students” and directed schools to “weigh the request for confidentiality against the following factors: the seriousness of the alleged harassment; the complainant's age: whether there have been other harassment complaints about the same individual; and the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an “education record” under the Family Educational Rights and Privacy Act (FERPA).”” Finally. OCR noted, “Even if the school cannot take disciplinary action against the alleged harasser because the complainant insists on confidentiality, it should pursue other steps to limit the effects of the alleged harassment and prevent its recurrence.””* Following the release of the 2011 DCL, the University, like many schools across the nation, sought to abide by the spirit of this guidance, which elevated complainant agency and autonomy as a fundamental consideration in determining whether to move forward with an investigation and/or disciplinary action. Schools and OCR understood this guidance as accepting the importance of respecting a complainant's decision not to proceed. "id at 17 (emphasis added), "yd at 18, ® 2011 DCL, p. 5. id. emphasis added). "a Pad, = Page 586 of 1820In April 2014, however, the Q&A greatly expanded and substantially changed thi guidance. As in the 2011 DCL, the Q&A noted that, “OCR strongly supports a student's interest in confidentiality in cases involving sexual violence."** But OCR also noted that, “There are situations in which a school must override a student’s request for confidentiality in order to meet its Title IX obligations; however, these instances will be limited . °° At the same time, OCR noted that, “A school should be aware that disregarding requests for confidentiality can have a chilling effect and discourage other students from reporting sexual violence.” OCR’s direction, in evaluating this conundrum, was to place this determination in the hands of the Title IX Coordinator or similarly-trained designee: “Addressing the needs of a student reporting sexual violence while determining an appropriate institutional response requires expertise and attention, and a school should ensure that it assigns these responsibilities to employees with the capability and training to fulfill them.”” Finally, in contrast to the four factors identified in the 2001 Guidance and repeated in the 2011 DCL (age, seriousness, pattem, and due process), the 2014 Q&A set forth an expansive list of factors to balance: These factors include circumstances that suggest there is an increased risk of the alleged perpetrator committing additional acts of sexual violence or other violence (e.g., whether there have been other sexual violence complaints about the same alleged perpetrator, whether the alleged perpetrator has a history of arrests or records from a prior school indicating a history of violence, whether the alleged perpetrator threatened further sexual violence or other violence against the student or others, and whether the sexual violence was committed by multiple perpetrators). These factors also include circumstances that suggest there is an increased risk of future acts of sexual violence under similar circumstances (e.g., whether the student’s report reveals a pattern of perpetration (¢.g.. via illicit use of drugs or alcohol) at a given location or by a particular group). Other factors that should be considered in assessing a student's request for confidentiality include whether the sexual violence was perpetrated with a ‘weapon; the age of the student subjected to the sexual violence; and whether the school possesses other means to obtain relevant evidence (¢.g., security cameras or personnel, physical evidence).”* % 2014 Q&A, p. 18, El * ids. 18-19, © tds pe 19, EAL 7 id, p.20, EL "dy p.21, 2, 30 Page 587 of 1820In the context of this evolution, even the best good faith efforts to comply with the 2011 guidance could not have predicted the detailed approach outlined in the 2014 guidance. Nor could institutions have foreseen the shifting emphasis that OCR places on elevating campus safety considerations over complainant agency and autonomy. How to respond to a complainant's request for confidentiality is but one example of the dramatic shifts in guidance that schools have been expected to incorporate on the fly mid-academic year, or in a piece-meal fashion as the guidance has evolved. Other examples of guidance set forth in the 2011 DCL that the 2014 Q&A modified were the designation of a 60-day time frame for resolution, the use of prior sexual history, and expectations for coordination with law enforcement. ‘The conundrum posed by balancing individual agency and autonomy against broader institutional obligations is exacerbated by FERPA complications. Pervasive media attention has repeatedly portrayed a narrative based on a perception of institutional bias that casts institutions as monolithic entities intent on sweeping sexual assaults under the rug. Perversely, when a school follows OCR guidance and, after engaging in a fulsome exploration of the issues, refrains from conducting a full investigation or contacting law enforcement in deference to a complainant's specific request under the Violence Against Women Reauthorization Act of 2013, the school does not receive any recognition for its careful exercise of judgment and support for the complainant's autonomy. Because of FERPA constraints that preclude institutions from speaking to the facts, the rigor in analysis and careful and continuous balancing cannot be shared publicly. This inability to speak publicly is compounded by most community members’ lack of understanding of the complexity of the federal laws that speak to this issue. As a resu community members and outsiders are left with the impression that the school did nothing, an impression that unscrupulous journalists and campus activists more concerned with advocacy than accuracy are all too happy to reinforce. In light of these considerations, it is imperative that OCR, the only agency with the authority and platform to speak objectively to this issue, speak on behalf of institutions who are diligently seeking to balance the complexities of incredibly difficult judgment calls ~ judgment calls that often have no one “right” answer and that no other institution, including law enforcement, must navigate.” 4. Failure to Provide Due Process Protections ‘The concems identified above are exacerbated by OCR’s refusal to provide schools with notice of violations and access to its findings. OCR’s current discretionary practice lacks any of the hallmarks of due process, which provide, at @ minimum, notice and an opportunity to respond. First, OCR provides no appropriate notice of non-compliance as required by the 2001 Guidance, which deprives recipients the opportunity to take appropriate corrective action. As ” See 2001 Guidance at pi: “A ertical issue under Title EX is whether the schoo! recognized that sexual harassment has oecurred and took prompt and effective action calculated to end the harassment, prevent its recurrence, and, a appropriate, remedy its effects. If harassment has occurred, doing nothing is always the wrong response. However, depending onthe circumstances, there may be more than one right way to respond. The important thing is for school employees or officials to pay attention tothe school environment and not o hesitate t9 respond fo sexual harassment in the same reasonable, commonsense manner as they would to other types of serious misconduct.” 31 Page 588 of 1820noted above, the 2001 Guidance stated, “OCR always provides the school with actual notice and the opportunity to take appropriate corrective action before issuing a finding of violation. Justice O'Connor noted in Gebser: Presumably, a central purpose of requiring notice of the violation “to the appropriate person’ and an opportunity for voluntary compliance before administrative enforcement proceedings can commence is to avoid diverting education funding from beneficial ‘uses where a recipient was unaware of discrimination in its programs and is willing to institute prompt corrective measures. ‘The administrative enforcement scheme presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation. Under the current administration, this practice no longer exists. Indeed, in February 2015, OCR revised its Case Processing Manual, without any notice to institutions, to include the following provision: Where OCR has obtained sufficient evidence to support a finding under CPM subsection 303(a) (insufficient evidence) or CPM subsection 303(b) (violation) with regard to any allegation(s), OCR will not resolve the allegation(s) pursuant to CPM Section 302, but will proceed in accordance with the appropriate provisions set forth in CPM Section 303.'"" Second, OCR has declined to provide recipients with actual notice of its findings or the facts upon which it relies to make such findings, before they are finalized, despite the fact that nothing in the Case Processing Manual precludes OCR from sharing a Letter of Findings prior to the conclusion of the investigation and negotiation of a resolution agreement. Worse, OCR has rescinded the opportunity for recipients to take appropriate corrective action before issuing a finding of violation. As such, schools are asked to trust the factual record and the findings, and to blindly sign a resolution agreement without the benefit of reviewing or testing the underlying findings. Here, the University has no opportunity to challenge the legal, factual, or equitable foundation underlying OCR’s proposed findings at a stage that would give both the institution and OCR an opportunity to discuss the issues based on a complete and transparent record. The University has asked for clatity in the findings, and OCR has attempted to provide only an oral preview of the proposed findings. OCR has declined to share the actual Letter of Findings. © Gebser v. Lago Vista Independent School Dist, $24 U8.274, 289, 290-291 (1998). "= U.S, Department of Education Office for Civil Rights, Case Processing Manual (rev'd February 2015), 20. 32 Page 589 of 1820OCR’s lack of transparency in its investigative and resolution process is unfortunate given the University’s commitment to timely and collaborative resolution of this review. It is even more unfortunate given that the University has sought to immediately respond to every request by OCR over the four-year period of this review; OCR has conducted only a limited review of available documents and information, without thoroughly investigating any one case; and OCR has a narrow view based on less than 10 days of interviews on Grounds. The potential for OCR to have missed information or misconstrued available records is significant, and the University lack the opportunity to correct any misinformation or unsupported conclusions by supplementing the factual foundation." 5. No Legal Basis Exists for OCR's Conclusion of a Hostile Environment To be subject to a hostile environment, an individual must (1) actually perceive incidents that were discriminatory on the basis of sex, and (2) subjectively perceive the environment to be abusive such that it alters his or her educational opportunities or conditions of employment.'"* A determination by OCR finding a hostile environment does not have the legal foundation to withstand judicial serutiny because substantial evidence does not support that all members of the campus community (1) actually perceived incidents that were discriminatory on the basis of sex, and (2) subjectively perceived the environment to be abusive such that it altered their educational opportunities or conditions of employment. Appellate review of administrative decisions is governed by the standards established in the Administrative Procedure Act (APA), 5 U.S.C. § 706. The APA provides that an agency action must be set aside if the action was, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” “without observance of procedure required by law,” or “unsupported by substantial evidence in a case subject to” a public adjudicatory hearing.'“ “Substantial evidence” “is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established.”"”* Rather, it such relevant "As an example, OCR questioned the adequacy of the University’s response to complaints against employees based only on a review of informal contact sheets, without recognizing that information about effective tees an ied bil gene sk nuns id nsec OCR rT fi "© Harri v, Forklift Systems, Ine., S10 US. 17,2 (1993) SUS $706; Citizens 1o Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) "Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Ped. Ci. 2006) (quoting NLRB v. Columbian Enameling & Stamping Co., 306 US. 292 (1939), 33, Page 590 of 1820evidence as a reasonable mind might accept as adequate to support a conclusion.”'® Although the substantial evidence standard is deferential, a court “cannot uphold a decision by an administrative agency ... if... the reasons given by the tier of fact do not build an accurate and logical bridge between the evidence and the result." Here, substantial evidence cannot /egally support a factual finding of a hostile environment. OCR has consistently explained that a hostile environment exists only when allegations of sexual-based conduct are “sufficiently serious to limit or deny” a particular student's “ability to participate in or benefit from the school’s educational program.”"* OCR has also affirmed that “[t]he definition of hostile environment sexual harassment used by the [Supreme] Court in Davis [v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999)] is consistent with” OCR's definition.'"” Under this definition, if an educational institution delays in responding to allegations of sexual harassment or responds inappropriately, its own action may cause a hostile environment to persist. But delayed or inappropriate procedures cannot possibly subject students and employees who have never witnessed or experienced harassment to a hostile environment. As set forth below, because OCR did not conduct an investigation into individual complaints, nor canvass a significant cross-section of the campus community, the facts OCR has collected during its compliance review are insufficient to build a “bridge” to the conclusion that each member of the campus community has actually perceived sexual harassment and has been so subjectively affected thereby that they are subject to a hostile environment. OCR explained in its 2001 Guidance that “[a] hostile environment can occur even if the harassment is not targeted specifically at the individual complainant” when an individual “directs sexual comments toward a particular student . .. [and] others . . . witness the conduct.*!"" The qualifier is important. Indeed, Hall v. Gus Construction Co., 842 F.2d 1010, 1015 (8th Cir. 1988), one of the cases OCR cited to show that harassment aimed at a third party can subject a bystander to a hostile environment, highlighted that “incidents of sexual harassment reported by other females bear on a plaintiff's claim only if there is evidence that the incidents affected plaintiff[] ....°"'' Further, since Hall, the Supreme Court and lower federal courts throughout “* Cox v. Shannon-Pocahontas Mining Co, 6 F.3d 190, 192, 192 (4th Ci 1993) (quoting Richardson v Perales, 402 U.S. 389, 401 (1971) "Chao v. Gunite Corp , 442 F.3d 550, $58 (7th Cir. 2006) (quoting JC. Penney Co. v NLRB, 123 F.3d ‘988, 995 (7th Cir, 1997)}; se also Cox, 6 F.3d at 192-95 (finding ALJ's conclusion that an employer presented ‘evidence that ruled out che causal relationship between a minor's tial disability and his employment was not supported by substantial evidence): Felishy v: Bowen, 35 F-34 1027, 1040-41 (6th Ci. 1994) (nding substantial evidence didnot support an ALI's decision because the ALJ did noi apply the fall statutorily required test for «evaluating subjective complaints of pan). See, egg. 2014 Q&A at | '* OCR acknowledges this concept in the 2001 Guidance at v-vi, In addition, OCR recognizes that federal ‘cases interpreting Title VIl are relevant in determining what constitutes hostile environment sexual harassment under Tile IX. See id; 2011 DCL at 11 9.26. "2001 Guidance at 6 (emphasis added) "Ja, at 30 n.43 (citing Hatt). 34 Page 591 of 1820the country have reiterated the basic principle that a person alleging a hostile environment must ‘actually perceive hostile conduct. In Harris v. Forklift Systems, the Supreme Court clarified that an employer may be liable under Title VII where “the environment would reasonably be perceived, and is perceived, as hostile or abusive.”''? In addition, lower federal courts count “subjective awareness” of discrimination directed at others among the elements of Title VII or Title IX claim. "? Here, there is no evidence, let alone substantial evidence, to support that the entire University community was subjected to a hostile environment. In fact, in the case underlying the Rolling Stone article, the student who was the focus of the article provided a strong letter of support for the University, as did many other complainants.'"* Without conducting individual investigations into cach complaint, or canvassing a broad cross-section of the community, OCR has precluded itself from being able to identify any individual who actually perceived objectively hostile or abusive conduct. In the absence ofan individual complainant, or a detailed investigation into a set of factual allegations that might support a finding of a hostile environment, there is no legal foundation for finding a hostile environment at the University. B. Insufficient Factual Foundation In addition to the legal challenges, OCR lacks the necessary factual basis for concluding that a hostile environment affects the 21,000 students and more than 12,000 employees at the University. To the contrary, OCR’s factual findings cannot exceed the depths it probed during its four-year compliance review. During that review, OCR reviewed University records documenting informal contacts, complaints, investigations, and outcomes. OCR also met with a statistically insignificant percentage of the population (less than 1% of students and employees). Many of these interviews were conducted in the immediate wake of the Rolling Stone story and before that story was withdrawn. This evidentiary foundation is not sufficient to determine, as OCR must to support its finding, that aff members of the campus community actually perceived discrimination ‘on the basis of sex and subjectively viewed the environment as so abusive that it affected their "S10 US. 17, 22 (1993). ™ See, eg, Schwapp v. Town of Avon, 118 F.3d 106, 111-12 (2d Cir. 1997) (holding that the trier of fact must resolve whether plaintiff was aware of incidents relating to other minorities during his employment): Veles OVC, Ine., 227 F, Supp. 24 384, 410 (E.D. Pa, 2002) (*First, the plaintiff must show subjective awareness of the discrimination directed at others”); Van Jefgerhuis v. Mercury Fin. Co., 940 F. Supp. 1344, 1361 & n.6 (S.D. Ind. 1996) (noting the “requirement that a plaintiff be aware of third parties" experiences in order to assemble them in ‘support ofa hostile environment claim"); Perkins v. General Motors Corp. 129 F.R.D. 655, 668-69 (W.D. Mo. 1990) (discussing the eourts ruling that plaintiff's witnesses would be allowed to testify about their perception of the work environment if there was a showing that 1) the environment the witness would testify about was the same work environment plaintiff experienced; and 2) plaintiff knew about the other witnesses” experiences). ™ See huypitww.cavalierdaily.com/artile/20 14/1 /letter-advocating-for-ean-eramo. 35 Page 592 of 1820educational opportunities or conditions of employment. Accordingly, OCR has no basis in fact to conclude that all members of the University community actually perceived a hostile or abusive environment. In addition, OCR lacks sufficient evidence of the subjective perceptions of community members. Consistent with federal case law, OCR explained in 2001 that it considers a variety of related factors from hoth a subjective and objective perspective to “draw commonsense distinctions between conduct that constitutes [hostile environment sexual harassment] and. conduct that does not rise to that level.” To support its conclusion that evaluating conduct from a subjective perspective is appropriate, OCR cited the Supreme Court’s commonsense statement in Harris that “if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no . . . violation.”|'° In addition, OCR has often reiterated that it “examines all relevant circumstances from an objective and subjective perspective.” including in all of OCR’s six latest letters of findings.'"” In fact, OCR faulted the Ohio State University because its policies ‘include an inappropriate definition of sexual harassment” that “did not specify that the conduct in question must be considered from both a subjective and objective perspective of a reasonable person in the alleged victim’s position, considering all the circumstances.”!'* OCR’s failure to collect evidence regarding the subjective perceptions of any reasonable cross-section of the University community is especially problematic here because, as the Seventh Circuit has recognized, “the impact of “second hand harassment’ is obviously not as great as the impact of harassment directed at the” complainant.''? Thus, depending on highly subjective factors, community members that witnessed sexual harassment second-hand may or may not have perceived the environment to be so abusive that it altered their educational opportunities or conditions of employment. Further to evaluate whether the University allowed a hostile ‘environment, an objective lens would require the thorough gethering of all information and documents, and interviewing relevant witnesses to the University response. OCR did not conduet such a review. Further, OCR’s finding of a hostile environment in the context of a compliance review is wholly unprecedented. The closest OCR has come to making such a finding in publicly available letters of finding was in the resolution of the compliance review at Ohio State University.' In that matter, Ohio State University conducted its own investigation of alleged 5 2001 Guidance at §-7. 8 jg, at 29-30 n. 38, citing Harris at $10 US. 17, 21-22 (1993), 4 See fetters cited in footnote 75, Harvard Law letter at 3; Southern Methodist University letter at 35, Princeton letter at 3; Ohio State leter at 3, 25-26; Virginia Military Insitute letter at 3; Tufts letter at 2. Oia State loner at 25-26, 1 Werner v. Advance Newhouse P’ship, LLC, 2013 US. Dist. LEXIS 177002, a *14 (E,D. Cal. Dec. 16, 2013) (quoting Gleason v. Mesinow Fin., 118 F.34 1134, 1144 (Tth Cit. 1997). © Ohio State letter at 2. 36 Page 593 of 1820sexual harassment within its marching band and found a sexually hostile environment for students in the band, because the 225-member band had a “sexualized” culture, its members were made to swear secrecy oaths about objectionable traditions and customs, and the band engaged in misconduct including excess alcohol consumption that contributed to a sexual assault.'"" The ‘University initiated its own corrective action to remedy the hostile environment, and OCR incorporated those actions into its Resolution Agreement with the University as requirements.'"* In essence, OCR adopted the University’s own finding, which was based on specific and identifiable conduct by University community members, within a defined student organization that had been fully investigated, rather than an amorphous and unsupported conclusion that the University’s inadequate responses created a pervasive hostile environment for the entire University community. In other investigations, OCR has concluded that an educational institution's failure to provide prompt and equitable responses to reports of harassment allowed for the continuation of a hostile environment for the students subject to the harassment.'”* In these cases, OCR has not labeled the entire school a hostile environment. For example, in resolving individual complaints at the Virginia Military Institute (VMD), the Metro Office found, “VMI failed to provide a prompt and equitable response to complaints of sexual harassment and sexual violence as required by Title IX, thereby permitting a sexually hostile environment to exist for cadets that limited or denied their access to educational opportunities provided by VMI."'™' That finding, however, was tied to the specific allegation contained in the complaint that “VMI permits an environment hostile to female cadets both in the barracks and in the classroom.”"” OCR summarized its review of over 25 Title IX investigative files, and found that in six of those 25 matters, VMI's response did not comply with Title IX requirements.’ As a result, OCR concluded, in the context of those six matters, which concerned a population of approximately 100 female cadets, that “VMI failed to respond in a prompt and equitable manner to complaints of sexual harassment and sexual assault of which it had notice and that this failure permitted sexually hostile environment to exist for cadets that was sufficiently serious as to deny or limit their ability to participate in VMI"s program.”'?” This approach is consistent with OCR’s long- established practice of evaluating the existence of a hostile environment on the basis of @ particular student or set of students’ articulable and identifiable experience. "yg a2 ‘See Southern Methodist University leter at 2-3; Tufts University leter at 3, 20, 22-23 (OCR further determined that for the Student, this failure allowed for the continuation ofa hostile environment... .."); VME letter at 18-19 (“The cadet was subjected toa sexually hostile environment that was ereated by the assault and that persisted due to VMI's failure..." See VMI Letter at pg 2. fd a 16-21. rd 21 37 Page 594 of 1820The University understands that OCR may make a finding of a hostile environment following a thorough investigation of any individual student’s experience — but OCR did not do that here, Even if t had, that finding would be limited to the specific individual, not extrapolated to the entire University community. OCR quite simply has no foundation to make a broad-based hostile environment finding. We understand that OCR conducted student focus groups. We note three specific concerns that limit the use of the information gathered from those focus groups: (1) the information provided by students and other community members in those focus groups is anecdotal at best, and without a review of the underlying files and discussion with University administrators, provides an insufficient foundation for a broad-based hostile environment finding; (2) the total number of individual community members interviewed by OCR comprises less than 1% of the student body and employee population and is not statistically significant; and, (3) the most recent student focus groups, held within two weeks of the Rolling Stone article, but before the article was debunked, do not present an accurate reflection of University climate and culture. Notably, as has been shared with OCR in prior correspondence, the University received validating letters of support from complainants and victim advocacy agencies during this same timeframe that reflected positively on the University’s climate, culture and efforts to identify, prevent, and address conduct that could create a hostile environment. Finally, while we recognize that OCR is significantly under-resourced and that the investigative team in this matter has worked collaboratively with the University, the investigation has been truncated, and at times piece-meal given the four-year span of the investigation. Indeed, for seventeen months of that investigation, OCR had no interaction with the University. OCR’s record from this compliance review is conclusory at best, and cannot support a finding of a hostile environment. C. An Inequitable Qutcome Beyond the legal and the factual deficiencies described above, and perhaps most importantly, OCR’s conclusion that a hostile environment existed through the spring of 2014 is quite simply, unfair and, as such, is a disservice to our entire community. Even more concerning are the implications of OCR’s proposed finding on the University’s efforts to remove barriers to reporting and to our shared mission with OCR. As outlined in the timeline above, OCR first contacted the University more than five years ago and its investigation has proceeded in fits and starts. Despite the University’s immediate efforts to implement the 2011 DCL’s requirements, and despite specific requests by the University for technical assistance on compliance issues, OCR never provided substantive feedback or shared any concerns about the University’s compliance. To the contrary, OCR generally shared positive feedback with the University throughout the process, and the parties enjoyed an exceptionally collegial and collaborative working relationship. To lear now, at the end of a four-year investigation, that OCR had such significant concems about compliance that it believed the University’s inaction caused a hostile ‘environment, is inconsistent with the message shared by the investigative team during the course of the review. Given the University’s extensive efforts to independently and promptly implement OCR guidance during the course of the investigation, there is no question the 38 Page 595 of 1820University would have been equally responsive to real-time, contemporaneous concerns expressed by OCR. IfOCR believes that all members of the University community were subject to a hostile environment during the period of OCR’s investigation (through spring 2014), OCR has failed in its mission to “stfan]d as a guardian of civil rights” in educational institutions by “remov{ing] barriers to students’ full participation in every facet of educational life.”"* As part of that mission, OCR promises that it will work with educational institutions to bring them into 1ce during the course of its investigations.'”” In light of OCR’s proposed finding, OCR’s failure to keep these promises and respond to the University’s repeated requests for help to improve its Title IX policies and procedures is confounding. Assuming arguendo that OCR's finding that the University’s action created a hostile environment was warranted, OCR’ failure to share compliance concems with the University contributed to the continuation of the purported hostile environment, and allowed issues to persist, under OCR's watch, that negatively impacted students during the length of the four year investigation.'*” In other words, OCR would bear equal responsibility for not taking timely corrective action — or directing the University to do the same. ‘OCR’s decision to ignore its own repeated failures to provide technical assistance and to tar the University with an unsupported finding of a hostile environment suggest that OCR's core work is not to “prevent(], identify[], end[], and remedy] discrimination against America’s students.” but instead to punish educational institutions for failing to keep up with OCR’s evolving and sometimes ambiguous guidance.'*' Instead of working with the University collaboratively, OCR now seeks to expose the University to public condemnation by lobbing onto the inaccurate and negative national perception created by Rolling Stone's “drive-by journalism” — a perception that was bolstered by comments from the head of OCR. Such a finding traps the University in a position in which it can vindicate itself only after risking the loss of federal funding, enduring harmful media attention, and facing exposure to certain civil litigation. This is particularly troublesome given the incendiary nature of the issue, and the difficulty in challenging OCR findings due to FERPA restrictions that prevent the University from speaking publicly about individual cases. As a prime example, the University engaged an OCR, Protesting Givi Rigs, Advancing Egy: Report othe President and Seereary of Eaton (April 2015), available ar spin ul 0. f: ** 2001 Guidance at i, 10, 14-15, "Indeed, recent media attention has highlighted this issue. On July 22,2015, the Washington Times published an article, Obama administration knew of Rolling Stone rape siory before publication, thes suggested thet ‘OCR was aware of the incident underlying the Rolling Stone article as far back as September. While disturbed to learn of these concerns, the University eaves room to accept that the nefarious motives ascribed to the Department ‘of Education by the Washingtow Times may not be accurate. However, certainly the perception of bias and an ‘agenda driven by polities and not facts is nonetheless damaging to the University community. "OCR, About OCR, htn/ivww2.ed sov/ahouoffices/lisvoeraboytoct inl. 39 Page 596 of 1820extemal, objective law firm with training and expertise in Title IX matters to conduct an independent review of the allegations underlying the Rolling Stone article. ‘That review found that the University’s response to the case at issue was “textbook” and followed OCR guidance to atee, And yet, the University has been unable to share those findings, which underscore and support similar proposed findings by OCR about the depth and quality of the University’s care for students. The University sought to provide its community with the appropriate facts and context in which to evaluate the salacious claims made by Rolling Stone. as underscored by the Assistant Secretary's comments in the article. To do so, the University sought a FERPA waiver from the federal government, which was denied.’ In the context of OCR’s refusal to provide actual notice of a violation or an opportunity to correct the violation during an investigation, educational institutions are left with no forum to address critical issues of law, factual accuracy, and equitable outcomes. Finally, to avoid significant and irreversible damage to the University’s core values, institutional integrity, and ability to serve its students effectively, OCR has an obligation to, explicitly decouple any comments about the Rolling Stone account from its other findings. [PF PT_] That perception was inflamed by comments from the head of OCR suggesting that the Ca ‘was not taking its compliance review seriously. In response to the article, and in keeping with the University’s commitment to student welfare and its Title IX obligations, the University immediately engaged in critical self-assessment — and an independent and objective extemal legal review — to evaluate its handling of the student report identified in the article and its current policies, procedures, and practices. That self-assessment has continued unabated since December, even as the facts of the underlying account have been roundly debunked. Notably, however. the University has been precluded by the federal government from disclosing the truth about the University’s caring and supportive response to the student’s account ~a response that demonstrated a textbook application of OCR guidance about how to balance a complainant's agency and autonomy with broader institutional obligations to safety. In light of this context, OCR has a duty to speak objectively and precisely in its Letter of Findings to avoid further perpetuating the biased and negative pall cast by Rolling Stone. This is particularly critical in light of OCR’s public comments in the Rolling Stone article that suggest prejudgment of the University during the agency’s ongoing compliance review and call the objectivity of OCR’s findings into question. As a portent of the potential negative implications of a finding of @ hostile environment, Rolling Stone is now citing these comments in defense of a defamation lawsuit filed against the magazine by Associate Dean of Students Nicole Eramo as support for the underlying article’s premise that the University grossly failed to respond to issues of sexual violence on Grounds. In light of this nexus, allowing an unsupported finding of hostile environment to stand will improperly bolster the now-discredited Rolling Stone article. More importantly, it will significantly undercut the University’s prevention and response efforts, and chill reporting for students, employees, and community members. 40 Page 597 of 1820In light of OCR’s tremendous delay in the resolution of this investigation, the significant evolution in available guidance, the paradigm shift in enforcement strategy. OCR’s silence in the face of the University’s request for technical assistance, and the University’s tremendous efforts to date, as recognized by OCR in prior communications, allowing a finding that the University failed to identify or address the existence of a hostile environment is inequitable and constitutes an abuse of OCR’s discretion. V. Conclusion As a public university, a foundational part of the University’s mission is to promote the common good. We were founded to safeguard the core values that underpin the world’s greatest democracy: freedom, liberty, and equality. We exhibit these values through our willingness to face our shortcomings with candor, and through our eagemess to become better. Thomas Jefferson defined this attitude of candor and improvement for us when he said this about the University: “For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” We recognize that the tone of this letter, while respectfl, is strong. It is not meant to be antagonistic or adversarial in nature, but rather to express the depths of our concern about the potential harm faced by the University and those it serves, in response to the actions of the federal government. We are hopeful that the coalescing of these concerns in written form may help OCR to reach a prompt and equitable resolution with the University on this critical issue either by removing any finding as to hostile environment or resolving this matter via a 302 resolution, We reaffirm our commitment to the negotiated Resolution Agreement that addressees OCR’s observations and provides remedies tailored to those observations, consistent, with our request that OCR will provide the University of Virginia with all legal and administrative rights and remedies to contest the legal or factual basis of the findings irrespective of whether the University has signed the Resolution Agreement. We remain, as always, deeply committed to supporting our shared mission to eradicate sexual and gender-based harassment and violence, and hope that we can do so collaboratively. 4l Page 598 of 1820