Case: Department of Education OCR Title IX Investigation of Occidental College

In 2016, the United States Department of Education, Office for Civil Rights ("OCR"), opened an investigation to determine whether Occidental College had violated Title IX. The original complaint described allegations on behalf of forty-six students, former students, staff, and faculty. OCR opened an investigation on the following issues:

1) whether the college disseminated a notice of nondiscrimination on the basis of sex;

2) whether the college employed and properly identified a Title IX coordinator;

3) whether the college adopted procedures that, as written, provide for a prompt and equitable response to sexual harassment/violence complaints and reports;

4) whether, in practice, the college provided a prompt and equitable resolution to complaints of sexual harassment/violence which it knew or should have known about;

5) whether the college's failures to respond to complaints created a hostile environment for students on the basis of sex; and

6) whether the college engaged in retaliatory conduct against students and faculty who advocated for changes in the college's sexual misconduct policy.

OCR determined that the college was in compliance with Title IX in terms of disseminating a notice of nondiscrimination on the basis of sex. The college also employed a full-time Title IX coordinator and deputies who were well-trained and qualified, and properly identified the Title IX Coordinator.

In OCR's investigation of whether the college adopted procedures that, as written, provide for a prompt and equitable response to sexual harassment/violence complaints and reports, it reviewed 4 different policies over the relevant time period. OCR had concerns with the interim 2013 policy because of conflicting language within the policy and worries that complaints may be dismissed prematurely, but all of its concerns were addressed in the updated policy. OCR found that their current policy, as written, provided a prompt and equitable resolution of complaints of sexual harassment, including sexual violence.

To investigate whether the college, in practice, provided a prompt and equitable resolution to complaints of sexual harassment/violence which it knew or should have known about, OCR reviewed four years of complaints. The original complaint filed with OCR alleged that the college failed to interview all relevant witnesses in two formal cases. OCR found that the college did not interview all witnesses because it believed the witness testimonies to be repetitive, but this did not constitute failure to provide a prompt and equitable response. In general, the college interviewed every witness identified. The complaint also alleged that the college failed to take interim measures to protect complainants before the final outcome of the investigation. OCR determined that the college routinely implemented interim "stay away" letters pending results of its hearings and also provided academic and counseling accommodations to complainants. OCR found that the Occidental's interim measures were in compliance with Title IX. OCR also found insufficient evidence to support the other allegations in the complaint, including that the sanctions by the college against respondents were not adequate, that the college did not take into account multiple assaults by the same respondent, and that the college did not follow up appropriately on informal complaints or complaints involving students from other colleges.

OCR also investigated whether the college's failures to respond created a hostile environment for students on the basis of sex. OCR investigated several specific incidents and determined that the college overall complied with Title IX, except for three cases that were not promptly decided.

The complaint also alleged that the college engaged in retaliatory conduct against students and faculty who advocated for changes in the college's sexual misconduct policy. Although OCR found that some of the college president's comments about an advocacy group were concerning because of a possible chilling effect on student advocacy, the rest of the specific allegations were not substantial enough to show retaliatory conduct.

Overall, OCR concluded that the preponderance of the evidence did not indicate that the college violated Title IX, except for its failure to reach a prompt resolution in three cases. The college agreed to enter into a voluntary resolution agreement to address OCR's concerns on June 8, 2016. The voluntary resolution agreement provided for training for administrators and employees about how to prevent and respond to retaliation, the creation of an annual standard process to measure the campus climate regarding sexual assault and to respond to concerns, and monitoring by OCR related to the promptness of the resolution process for three years to determine that the college's response is prompt and effective. The resolution agreement between OCR and Occidental College also included provisions for OCR to monitor the implementation of their new post-2013 policy. OCR closed its investigation on June 9, 2016.