Office Of Civil Rights Investigations

Recently, the Department of Education’s Office for Civil Rights and the Department of Health and Human Services’ Office for Civil Rights have completed a series of investigations that are relevant for independent schools.  While these investigations only apply to schools receiving federal funding, they provide helpful guidance for schools to consider.

Taft College

Taft College entered into a resolution with the U.S. Department of Education’s Office of Civil Rights (OCR) based on allegations that the college did not comply with its Title IX obligations in responding to harassment based on sex, including sex stereotyping.  In particular, OCR found that the College failed to respond to repeated allegations from one of its students, who is transgender, after the College’s employees harassed the student based on sex for more than a year.

The allegations included that a professor told the student, in front of her whole class, that based on her physical appearance, that professor did not consider the student “feminine enough,” and that on another occasion, an administrator of the student’s program knowingly excluded the student when addressing other female students as “ladies” during class.  The student also alleged that she asked the Director of the program to include pronoun options other than “he” and “she” on its intake forms, and the Director refused, stating that plural pronouns were invalid and not commonly used except for members of the LGBTQ community.  The student provided details of more than a dozen specific incidents during which seven different College staff and faculty members referred to the student by her previous male name and/or with male pronouns.

The allegations also included that another transgender student requested that staff address the student with plural pronouns, and the professor responded by throwing up his hands and stating he was “too old to deal with the request.”

OCR’s investigation reflected that the College received repeated notice that the student was experiencing almost daily harassment, including through faculty misgendering the student on an almost daily basis, but the College did not respond to these allegations to confirm whether they were occurring or to redress the harm the student reported experiencing.  As a result, OCR concluded that the College subjected the student to a hostile environment based on the student’s sex, and that the environment negatively impacted the student’s education.

The College committed to take steps to ensure nondiscrimination on the basis of sex, and resolved to take the following actions:

• Offering to reimburse the student for counseling to address the effects of the sex-based harassment during the student’s enrollment.
• Reviewing and revising, as necessary, its policies and procedures to clarify that harassment based on sex includes harassment based on sex stereotyping.
• Training its employees who respond to sex-based harassment about the College’s obligations under Title IX.
• Providing documentation to OCR demonstrating that the College’s responses to complaints of sex-based harassment during the 2022-2023 and 2023-2024 academic years complied with Title IX.

The letter to Taft College can be found here, and the resolution agreement can be found here.

Arcadia University

The U.S. Department of Education OCR resolved a sexual harassment investigation at Arcadia University in Pennsylvania.  OCR determined the University violated Title IX when it failed to investigate possible sexual harassment by a University professor despite the University repeatedly receiving reports over several years from students and faculty that the professor harassed students.

OCR determined that when the University finally initiated an investigation into the allegations in 2021, the University stopped the investigation once the professor resigned, violating the University’s Title IX obligations to determine whether sex discrimination occurred and to redress any hostile environment students may have suffered.

OCR’s investigation established that several students and faculty reported to the University from 2018 to 2021 that the professor repeatedly engaged in sexual harassment of female students.  The conduct ranged from inappropriate comments about body parts and inappropriate comments about the professor’s wife’s dresses.  One student reported that the professor touched her elbow and she recoiled.  The professor asked the student not to report him for sexual harassment and stated he would call on a male student to avoid accusations.  The various conduct was reported to the former chief of human resources and a dean.  OCR also found evidence that showed students reported the professor’s sexually harassing conduct in the professor’s course evaluations from 2019 onward.  For example, one student stated that the professor made many sexually inappropriate comments on a regular basis, which made students uncomfortable. Another student wrote that there were many strange comments of a sexual nature during class.

The former chief of human resources mistakenly believed she could not pursue an investigation because the professor was tenured, and that the conduct alleged did not state a Title IX claim because no allegation was made of inappropriate touching.  OCR obtained evidence showing that the former chief of human resources believed that the professor retaliated against the students who first reported his conduct by accusing the students of cheating, but that the University did not address these concerns.

The resolution agreement required the University to take the following steps:

• Assign a third party to complete its investigation of the formal complaint against the professor and, if the conduct alleged is substantiated, and created a hostile environment on the basis of sex, offer individual remedies to the individuals who filed the formal complaint.
• Conduct a comprehensive investigation of the professor’s actions for a period of four years to determine whether his actions created a hostile environment on the basis of sex for other students, and if so, offer appropriate remedies.
• Conduct a review of all Title IX complaints of student- and staff-involved sexual harassment for a period of three years, to ensure that each complaint was resolved in compliance with Title IX, and if not, provide appropriate remedies.
• Provide to OCR documentation of Title IX case file reviews for a period of two years.
• Conduct a climate survey with students, and provide OCR a summary of the survey results and the University’s proposed corrective actions in response to the survey results for OCR approval. And,
• Revise the University’s Title IX Policy and Procedures, provide Title IX training to University faculty and staff, and post its Title IX training materials on its website.

The resolution letter can be found here, and resolution agreement can be found here.

North End Rehabilitation & Healthcare Center

North End Rehabilitation & Healthcare Center (North End) is a skilled nursing facility in Boston, MA that offers a variety of clinical services, including rehab, chronic kidney disease management, a ventilator program, long-term care, and respite care.  The Department of Health and Human Services’ Office for Civil Rights conducted an investigation after receiving information that North End was violating the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act by denying admission to individuals because they were taking Suboxone or Methadone to treat their Opioid Use Disorder (OUD).

OCR found that these individuals were taking prescription medication to treat OUD and were otherwise eligible for admission to North End.  OCR stated that individuals receiving medications to treat their OUD are protected under federal civil rights laws such as the Affordable Care Act and Section 504 of the Rehabilitation Act.  North End’s practice of declining admission to individuals with OUD, without an individualized assessment, screened out individuals with disabilities and denied them the opportunity to participate or benefit from services based on their disability.

North End voluntarily agreed to settle the matter and agreed to take the following actions:

• Revise its admissions policy;
• Provide training to admissions personnel on federal civil rights laws and opioid use disorder;
• Update customer service intake scripts with revised language to include whether the individual with a disability is qualified for the services provided at North End with a reasonable accommodation; and
• Before denying admission based on safety criteria, North End will conduct an individualized assessment, that relies on current medical knowledge or on best available evidence, to determine whether the individual poses a direct threat to the health and safety of others that cannot be reduced by reasonable modifications to its policies, practices, or procedures.

A copy of the Voluntary Resolution Agreement may be found here.