UNITED STATES DEPARTMENT OF EDUCATION REGION VIII

ARIZONA
OFFICE FOR CIVIL RIGHTS COLORADO
NEW MEXICO
1244 SPEER BLVD, SUITE 310 UTAH
DENVER, CO 80204-3582 WYOMING

September 29, 2017

Mr. Stephen Morgan, President

Westminster College
1840 South 1300 East
Salt Lake City, UT 84105

Re: Westminster College

Case Number 08-15-2022
Dear President Morgan:
We are notifying you of our decision in this case. On November 10, 2014, we received a
complaint alleging the Westminster College discriminated on the basis of sex. OCR notified the
College that it was investigating whether the College failed to equitably resolve or respond to
complaints, reports and/or incidents of sexual violence of which it had notice, including the
Complainants sexual assault complaint.1
We investigated this complaint under Title IX of the Education Amendments of 1972 and its
implementing regulation at 34 C.F.R. Part 106, which prohibit discrimination on the basis of sex
in education programs and activities that receive Federal financial assistance from the
Department. The College is a recipient of Federal financial assistance from the U.S. Department
of Education and is therefore subject to the provisions of Title IX and its implementing
regulation.
In reaching a compliance determination, OCR reviewed documentation submitted by the College
and conducted interviews of the Complainant and College employees, administrators, faculty,
students, and staff.
Based on the results of our investigation, we determine that there is insufficient evidence to
establish that the College discriminated against the Complainant as alleged. The bases for our
determination are discussed below.

Legal Standard

The regulation implementing Title IX, at 34 C.F.R. 106.31(a), provides that no person shall, on
the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity operated by a recipient of Federal
financial assistance. Sexual harassment that creates a hostile environment is a form of sex
discrimination prohibited by Title IX. Sexual harassment of a student creates a hostile

1
The complaint and subsequent communications with OCR only raised concerns relating to the Colleges handling
of the Complainants sexual assault complaint.

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

www.ed.gov
OCR Case #08-15-2022
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environment if the conduct is sufficiently serious that it denies or limits a students ability to
participate in or benefit from the recipients program.

When responding to alleged sexual harassment, a recipient must take immediate and appropriate
action to investigate or otherwise determine what occurred. If an investigation reveals that
discriminatory harassment has occurred, a recipient must take prompt and effective steps
reasonably calculated to end the harassment, eliminate any hostile environment and its effects,
and prevent the harassment from recurring. Pending the outcome of an investigation, Title IX
requires a recipient to take steps to avoid further harassment as necessary, including taking
interim steps before the final outcome of the investigation. The recipient should undertake these
steps promptly once it has notice of a sexual harassment allegation. It should notify the
complainant of his or her options to avoid contact with the alleged perpetrator, and allow the
parties to change academic or living situations as appropriate. For instance, the recipient may
issue a no contact order pending the results of the investigation. In addition, recipients should
ensure that the parties are aware of their Title IX rights and any available resources, such as
counseling services, and their right to file a complaint with local law enforcement.

Under Title IX, a recipient must process all complaints of sexual violence, regardless of where
the conduct occurred, to determine whether the conduct occurred in the context of an education
program or activity or had continuing effects on campus or in an off-campus education program
or activity. Further, once a school is on notice of off-campus sexual violence against a student, it
must assess whether there are any continuing effects on campus or in an off-campus education
program or activity that are creating or contributing to a hostile environment; and if so, address
that hostile environment in the same manner in which it would address a hostile environment
created by on-campus misconduct.

The regulation implementing Title IX, at 34 C.F.R. 106.8(b), requires that a recipient adopt and
publish grievance procedures providing for prompt and equitable resolution of student and
employee complaints alleging any action prohibited by the regulation implementing Title IX.
OCR has identified a number of elements in determining if grievance procedures are prompt and
equitable, including whether the procedures provide for: (a) notice to students and employees of
the procedures, including where complaints may be filed, that is easily understood, easily
located, and widely distributed; (b) application of the procedures to complaints alleging
discrimination or harassment carried out by employees, students, and third parties; (c) adequate,
reliable, and impartial investigation, including an equal opportunity to present witnesses and
evidence; (d) designated and reasonably prompt timeframes for major stages of the grievance
process; (e) notice to parties of the outcome and any appeal; and, (f) an assurance that the
institution will take steps to prevent further harassment and to correct its discriminatory effects
on the complainant and others, if appropriate. Title IX does not require a college to provide
separate grievance procedures for sexual harassment complaints; however, a colleges grievance
procedures for handling discrimination complaints must comply with the prompt and equitable
requirements of Title IX.

The regulation implementing Title IX, at 34 C.F.R. 106.8(a), also requires each recipient to
designate at least one employee to coordinate its efforts to comply with and carry out its
responsibilities under the regulation implementing Title IX, including any investigation of any
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complaint communicated to the recipient alleging any actions that would be prohibited by the
regulation implementing Title IX. It also requires each recipient to notify all of its students and
employees of the name, office address and telephone number of the employee or employees so
designated.

The regulation implementing Title IX, at 34 C.F.R. 106.9, requires each recipient to implement
specific and continuing steps to notify applicants for admission and employment, students and
parents of elementary and secondary school students, employees, sources of referral of applicants
for admission and employment, and all unions or professional organizations holding collective
bargaining or professional agreements with the recipient, that it does not discriminate on the
basis of sex in any educational program or activity which it operates, and that it is required by
Title IX and its implementing regulation at 34 C.F.R. Part 106 not to discriminate in such a
manner.

Analysis: Notice of Nondiscrimination, Title IX Coordinator, and Grievance Procedures

When investigating a discrimination complaint, OCR reviews the recipients applicable policies
and procedures to ensure that they are in compliance with the applicable regulations. The
following addresses the Colleges compliance with Title IXs requirements for notices of non-
discrimination, designation of employees responsible for overseeing compliance with Title IX,
and its policies and procedures with respect to Title IX.
Notice of Nondiscrimination
As indicated previously, The regulation implementing Title IX, at 34 C.F.R. 106.9, requires
each recipient to implement specific and continuing steps to notify applicants for admission and
employment, students and parents of elementary and secondary school students, employees,
sources of referral of applicants for admission and employment, and all unions or professional
organizations holding collective bargaining or professional agreements with the recipient, that it
does not discriminate on the basis of sex in any educational program or activity which it
operates, and that it is required by Title IX and its implementing regulation at 34 C.F.R. Part 106
not to discriminate in such a manner.
OCRs review established that the College provides a College-wide notice of nondiscrimination
on the basis of sex that meets the Title IX requirements. The College consistently included the
nondiscrimination notice on all recruiting materials, applications for admissions, in Student
Handbooks, in Faculty and Staff Handbooks. The College has also included the notice as part of
the Colleges Title IX webpages. In addition to the Title IX webpages, the College links to the
Title IX webpage in the banner at the bottom of all College webpages. For these reasons, OCR
found that the College was in compliance with Title IX and the regulations with respect to this
issue.
Designation of Title IX Coordinator
As previously stated, the regulation implementing Title IX, at 34 C.F.R. 106.8(a), requires each
recipient to designate at least one employee to coordinate its efforts to comply with and carry out
its responsibilities under the regulation implementing Title IX, including any investigation of any
complaint communicated to the recipient alleging any actions that would be prohibited by the
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regulation implementing Title IX. It also requires each recipient to notify all of its students and
employees of the name, office address and telephone number of the employee or employees so
designated.

OCR found that at the time of the complaint, the College had a designated Title IX Coordinator
who was identified by name, office address, and telephone number. The College subsequently
hired a different Title IX Coordinator who was on-boarded in the summer 2015. Our
investigation established that from the time the Complainant filed her complaint with the College
and throughout OCRs investigation, the Colleges Title IX webpage provided the name and
contact information for the Coordinators as well as Deputy Coordinators that had been delegated
investigative authority. Accordingly OCR determined that the College was in compliance with
the Title IX, at 34 C.F.R. 106.8(a).

Grievance Procedures
In interpreting the regulation implementing Title IX, at 34 C.F.R. 106.8(b), which requires that
a recipient adopt and publish grievance procedures providing for prompt and equitable resolution
of student and employee complaints alleging any action prohibited by the regulation
implementing Title IX, OCR has identified a number of elements in determining if grievance
procedures are prompt and equitable. These elements include whether the procedures provide
for: (a) notice to students and employees of the procedures, including where complaints may be
filed, that is easily understood, easily located, and widely distributed; (b) application of the
procedures to complaints alleging discrimination or harassment carried out by employees,
students, and third parties; (c) adequate, reliable, and impartial investigation, including an equal
opportunity to present witnesses and evidence; (d) designated and reasonably prompt timeframes
for major stages of the grievance process; (e) notice to parties of the outcome and any appeal;
and, (f) an assurance that the institution will take steps to prevent further harassment and to
correct its discriminatory effects on the complainant and others, if appropriate. Title IX does not
require a college to provide separate grievance procedures for sexual harassment complaints;
however, a colleges grievance procedures for handling discrimination complaints must comply
with the prompt and equitable requirements of Title IX.

OCR found that for the 2013-2014 academic year, the Colleges policies and procedures
concerning sexual harassment, sexual assault, and student conduct and discipline, included
several elements necessary to ensure that the grievance procedures are prompt and equitable.
However, the policies and procedures did not specifically include the following elements:
application of policies to discrimination carried out by third parties; clearly stated timeframes for
major stages of the investigation; or an explicit assurance that the institution will take steps to
prevent further harassment and correct its discriminatory effects on the complainant or others.
The policies and procedures in effect during the 2013-2014 academic year were published in the
Student Handbook, which the College provided to OCR for review. In addition, the College
provided OCR a copy of its standard operating procedure (SOP WM-999-SOP-11) that a Title IX
committee developed in August 2013 to guide relevant personnel in the handling of Title IX
complaints. The College indicated to OCR it has continued to conduct self-assessments of its
Title IX program and consequently, has continued to review and revise policies and procedures.
The College provided OCR a copy of its subsequent Title IX policies and procedures for review.
OCR confirmed that the revised policies and procedures, adopted April 15, 2017, included the
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elements necessary to conclude that the procedures are prompt and equitable, as required by Title
IX. Specifically, the revised policy corrected the previous omissions by articulating that the
policy applies to discrimination carried out by third parties; clearly states timeframes for major
stages of the investigation; and included an explicit assurance that the institution will take steps
to prevent further harassment and correct its discriminatory effects.

Response to Complainants Title IX Complaint

The Complainant was enrolled as a sophomore at the College during the 2013-2014 school year.
On September 6, 2013, the Complainant and a male classmate met at his off-campus apartment
to relax after dealing with a particularly stressful classmate. During the course of the evening,
the Complainant and the male student consumed alcohol. The Complainant stated that after
consuming a portion of alcohol, the male student (the Respondent) sexually assaulted her. The
Complainant reported the incident to the Salt Lake City Police Department in February 2014, but
no formal charge or investigation was initiated. The Complainant next reported the incident to
the Colleges Title IX Coordinator (Deputy) on or about March 28, 2014.

We reviewed the evidence collected from the Complainant and the College and determined that
the College took the following actions subsequent to the Complainants notification of the
alleged sexual assault.

In order to reduce the appearance of a conflict of interest based on the Complainants

work history with the Title IX Coordinator, the Title IX office assigned the case to
outside counsel (Counsel) and a Title IX investigator (the Investigator).

On April 4, 2014, Counsel, the Investigator, and a student advocate met with the
Complainant for an interview. At the outset of the interview, the Complainant was
provided information concerning the process, a copy of the Student Code of Conduct, an
explanation that once the investigation is completed a recommendation will be forwarded
to the judicial officer (the Dean of Students), and a summary of resources available to
the Complainant (including on-campus counseling center and the Rape Recovery Center).

During the interview the Complainant indicated that although she saw the Respondents
roommate briefly early on in the evening, there were neither witnesses to the sexual
assault nor to any of the events that occurred prior to the alleged sexual assault (alcohol
consumption, kissing in the living room, etc.).

The College immediately issued a no contact order for the Complainant and the
Respondent.

On April 14, 2014, Counsel and the Investigator interviewed the Respondent. During his
interview, the Respondent was informed of the prohibition against retaliation, the process
for investigations, and the disciplinary process.

On April 21, 2014, Counsel and the Investigator interviewed the Respondents roommate.

On May 5, 2014, Counsel and the Investigator presented their investigative findings to
the Title IX Coordinator and the Dean of Students. In addition, the Investigator provided
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the Complainant and the Respondent with investigation outcome letters. The letters
informed both of the parties that there was insufficient evidence to determine by a
preponderance of the evidence that either party was incapacitated to the extent that they
could not consent to the sexual relationship which took place on September 6, 2013.
Furthermore, the letter informs both parties of the protection against retaliation.

On May 9, 2014, the Complainant appealed the Title IX offices findings to the Dean of
Students. The Complainants appeal states in relevant part that she was appealing to
determine whether the decision reached was based on substantial evidence, that is,
whether the facts in the case were sufficient to show that a violation of the student code
had more likely than not occurred.

On or about May 12, 2014, the Dean of Students provided the Complainant and the
Respondent a list of eight names of College staff members via email who could serve on
a three member appeal panel. The parties were both informed that if conflicts existed
with any of the potential members, they should provide their concerns by May 14, 2014.
In addition, the Complainant and the Respondent were informed that the Complainant
that she could provide additional information to the appeal panel to consider by the same
date, May 14th. There is no evidence indicating that either the Complainant or the
Respondent expressed a concern with any potential member, or provided additional
information.

On or about May 27, 2014, the Complainant and the Respondent were informed via email
that the appeal panel was expected to meet at the end of the week and that the
Complainant could still send information for consideration. Again, there is no indication
that either party submitted additional information.

On May 29, 2014, the appeal panel members were each provided a letter from the
Colleges General Counsels Office describing the appeal procedure, as well as
interviews and notes from the Investigator and Counsel; findings letters sent to all parties
(the Complainant, the Respondent, the Dean of Students, and Title IX Coordinator); and a
copy of the Complainants appeal letter. As part of the appeal procedure, the letter
informs the members that the panel should appoint a chair; and that the chair will call
witnesses, determine what questions to ask, and write the final decision letter. The letter
states a decision should be made within two days of the hearing, and that the decision
letter should be delivered to the Dean of Students.

On May 30, 2014, the appeal panel was convened. The College indicated that the panel
met, reviewed the Complainants appeal request and the investigative documents, and
made a determination that there was insufficient evidence to determine by a
preponderance of the evidence that the Complainant was incapacitated to the extent that
she could not consent to sex.

On June 4, 2014, the appeal panel informed the Complainant and the Respondent by
letter that the panel reviewed the information presented and had determined the original
investigation was conducted fairly in light of the evidence presented.
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The Complainant alleged to OCR that the College did not fully consider evidence that she had
consumed alcohol, thereby causing her to be incapacitated and lacking the ability to consent to
sexual intercourse.
Based on the above, OCR determined that the College conducted a prompt and thorough
investigation of the March 28, 2014 sexual assault complaint. Specifically, the College avoided
potential bias by retaining an independent investigator and attorney; interviewed witnesses;
allowed the parties an equal opportunity to present evidence and witnesses; and rendered a final
determination within a reasonable timeframe (68 days, including the appeal process).
Additionally, the College took interim steps to avoid further harassment, offered counseling, and
victims advocacy resources.
With respect to the Complainants allegation that the College failed to properly consider evidence
concerning alcohol consumption, we found that during interviews with the Complainant and the
Respondent, the Investigator and Counsel made a good faith effort to ascertain each partys levels of
incapacitation, and accordingly, their ability to consent. In several instances, the investigators ask
about the Complainants and the Respondents food intake on that date prior to consuming alcohol;
the amount of alcohol consumed; and the Complainants and the Respondents ability to recall
details of the evening.

Based on our review of the Colleges investigation of the complaint, including each of the
interviews and the content of the investigation outcome letters, we concluded that there is
insufficient evidence to support a finding that the College violated Title IX in conducting its
investigation into the allegation. Although the College ultimately reached a factual finding that
the Complainant disagreed with, our investigation established that it appropriately investigated
the complaint and considered the Complainants position along with the other evidence.

As noted previously in this letter, the Colleges Title IX policies and procedures in effect during
the 2013-2014 school year did not include all of the elements necessary to conclude that the
procedures were prompt and equitable.2 OCR confirmed that the revised policies and
procedures, adopted April 15, 2017, included the elements necessary to conclude that they are
prompt and equitable, as required by Title IX. Moreover, OCRs review of how the College
responded to other instances of sexual misconduct complaints did not warrant further
investigation of any systemic concerns.

This concludes our investigation of this complaint. We are closing this complaint effective the
date of this letter. This letter addresses only the issues discussed above and should not be
interpreted as a determination of the Colleges compliance or noncompliance with Title IX or
other Federal civil rights laws in any other regard. The Complainant may have a right to file a
private suit in Federal court whether or not OCR finds a violation.

Individuals filing a complaint or participating in the investigation process are protected from
retaliation by Federal law. Under the Freedom of Information Act, we may release this
document and related correspondence and records upon request. If we receive a request, we will
protect personal information to the extent provided by law.
2
The policies and procedures elements previously missing did not impact the Colleges handling of the
Complainants complaint.
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This letter is a letter of findings issued by OCR to address an individual OCR case. Letters of
findings contain fact-specific investigative findings and dispositions of individual cases. Letters
of findings are not formal statements of OCR policy and they should not be relied upon, cited, or
construed as such. OCRs formal policy statements are approved by a duly authorized OCR
official and made available to the public.

If you have any questions you may contact Mr. Dan Kowalski, Equal Opportunity Specialist and
primary contact for this case at (303) 844-4537, or me at (303) 844-5942.

Sincerely,

Sandra Roesti
Supervisory Attorney
cc: Kathryn A. Holmes, Esq.