Feds end inquiry into Catholic U.'s response to rape report

This report was issued Oct. 31 by the Office for Civil Rights in the U.S. Education Department. It concluded an investigation into Catholic University's handling of a student's report of a rape on campus in December 2012. Feds side largely with Catholic U. in civil rights case related to rape allegation.

Case Document 11-1 Filed 11/02/17 Page 1 of 14


UNITED STATES DEPARTMENT OF EDUCATION REGION XI
. NORTH CAROLINA
if?? r; l' OFFICE FOR CIVIL RIGHTS SOUTH CAROLINA
359*?? 400 MARYLAND AVENUE, sw VIRGINIA
?4752'1 WASHINGTON, DC 20202-1475 DC



October 31, 2017

Mr. John Garvey

President

The Catholic University of America
620 Michigan Avenue, NE.
Washington, DC. 20064

Re: OCR Complaint No. 11-14-2048
Letter of Findings

Dear Mr. Garvey:

The Of?ce for Civil Rights (OCR) of the US. Department of Education (the Department) has
completed its investigation of the complaint we received on December 20, 2013, against The
Catholic University of America (the University). The complaint, ?led on behalf of a student
enrolled in the University at the time of the complaint (the Student), alleged discrimination based
on sex, with regard to the University?s handling of her complaint of sexual assault. Speci?cally,
the complaint alleged that the University discriminated against the Student based on sex when it
failed to respond in a prompt and equitable manner to her complaint that she was sexually
assaulted by another undergraduate student.

OCR is responsible for enforcing Title IX of the Education Amendments of 1972 (Title IX) and
its implementing regulation at 34 C.F.R. Part 106, which prohibit discrimination on the basis of
sex, including sexual harassment, in any program or activity receiving federal ?nancial
assistance. The University receives federal ?nancial assistance from the Department and
therefore is subject to the provisions of Title IX and its implementing regulation.

In reaching a determination, OCR reviewed documents provided by the Complainant and the
University, including relevant University policies and procedures and documentation relating to.
the University?s response to the Student?s complaint, and interviewed the Complainant and
University faculty, staff, and students. After care?ll consideration of all information gathered,
OCR ?nds insuf?cient evidence that the University failed to respond to a student?s sexual
violence complaint in a prompt and equitable manner, as required by Title IX, and ?nds that the
University?s process was not equitable for the accused student, in violation of Title IX.

LEGAL STANDARDS

Title IX prohibits discrimination on the basis of sex in education programs or activities operated
by recipients of Federal ?nancial assistance. The Title IX implementing regulation at 34 CPR.

The Department of EdttC? tiorz?s mission is to promote student achievement and preparation for gtobat competitiveness
by fostering educational excellence and ensuring equal access.

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Page 2 OCR Complaint No. 11-14-2048

states that no person shall, on the basis of sex, be excluded from participation in, be
denied the bene?ts of, or be subjected to discrimination under any educational program or
activity operated by a recipient of Federal ?nancial assistance.

Sexual harassment that creates a hostile environment is a form of discrimination prohibited by
Title IX. Sexual harassment is unwelcome conduct of a sexual nature, regardless of the sex of the
student. Sexual harassment can include unwelcome sexual advances, requests for sexual favors,
and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts
of sexual violence. Sexual harassment of a student creates a hostile environment if the conduct is
so severe, persistent, or pervasive that it denies or limits a student?s ability to participate in or
bene?t from the recipient?s program or activities.

OCR considers a variety of related factors to determine if a hostile environment based on sex has
been created and considers the conduct in question from both an objective and a subjective
perspective. Factors examined include the degree to which the misconduct affected one or more
students? education; the type, frequency, and duration of the conduct; the identity of and
relationship between the alleged harasser and the subject or subjects of the harassment; the
number of individuals involved; the age of the alleged harasser and the subject of the harassment,
the size of the school, the location of the incidents and the context in which they occurred; and
other incidents at the school.

A recipient has notice of harassment based on sex or disability if a responsible employee actually
knew or, in the exercise of reasonable care, should have known about the harassment. A
responsible employee would include any employee who has the authority to take action to
redress the harassment, who has the duty to report to appropriate school of?cials sexual
harassment or any other misconduct by students or employees, or an individual who a student
could reasonably believe has this authority or responsibility. Accordingly, schools need to ensure
that employees are trained so that those with authority to address harassment know how to
respond appropriately, and other responsible employees know that they are obligated to report
harassment to appropriate school of?cials. Training for employees should include practical
information about, how to identify harassment and, as applicable, the person to whom it should
be reported.

Once a recipient knows or reasonably should know of possible sexual harassment, it must take
immediate and appropriate action to investigate or otherwise determine what occurred. If an
investigation or other inquiry reveals that sexual harassment created a hostile environment, a
recipient must take prompt and effective steps reasonably calculated to end the harassment,
eliminate any hostile environment if one has been created, prevent the harassment from recurring
and, as appropriate, remedy its effects. These duties are a recipient?s responsibility regardless of
whether or not the student who was harassed makes a complaint or otherwise asked the recipient
to take action. If, upon notice, a recipient fails to take prompt and effective corrective action, the
recipient?s own failure has permitted the student to be subjected to a hostile environment. If so,
the recipient will be required to take corrective actions to stop the harassment, prevent its
recurrence, and remedy the effects on the student that could reasonably have been prevented had
the recipient responded and effectively.

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Page 3 OCR Complaint No. 11-14-2048

In situations where reported sexual harassment may constitute a criminal act, a recipient should
notify a complainantl of the right to ?le a criminal complaint with local law enforcement, and
should not dissuade a complainant from doing so either during or after the recipient?s internal
Title IX investigation. Additionally, recipients must take immediate steps to protect the
complainant and allow continued access to the recipient?s programs and activities.

It may be appropriate for a recipient to take interim measures during the investigation of a
complaint. In fairly assessing the need for a party to receive interim measures, a recipient may
not rely on ?xed rules or operating assumptions that favor one party over another, nor may a
recipient make such measures available only to one party. Interim measures should be
individualized and appropriate based on the information gathered by the Title IX Coordinator,
making every effort to avoid depriving any student of her or his education. The measures needed
by each student may change over time, and the Title IX Coordinator should communicate with
each student throughout the investigation to ensure that any interim measures are necessary and
effective based on the students? evolving needs.

The Title IX regulation, at 34 C.F.R. requires recipients to adopt and publish
grievance procedures providing for the prompt and equitable resolution of complaints alleging
any action that would be prohibited by Title IX, including sexual violence and other types of
sexual harassment. The procedures for addressing and resolving complaints of sexual harassment
should be written in language that is easily understood, should be easily located, and should be
widely distributed.

In evaluating whether a recipient?s grievance procedures are prompt and equitable, OCR has
identi?ed a number of elements in evaluating whether a recipient?s grievance procedures are
prompt and equitable, including whether the recipient:

1) provides notice to students and employees of the procedures, including where
complaints may be ?led;

2) applies the procedures to complaints alleging discrimination and harassment
carried out by other students, employees or third parties;

3) ensures an adequate, reliable, and impartial investigation of complaints, including

the opportunity for both the complainant and respondent to present witnesses and
other evidence;

4) designates and follows a reasonably prompt timeframe for the major stages of the
complaint process;

5) noti?es the parties of the outcome of the complaint; and

6) provides assurance that the recipient will take steps to prevent recurrence of any

sex discrimination or harassment found to have occurred and to remedy its
discriminatory effects, as appropriate.

There is no ?xed time frame under which a recipient must complete a Title IX investigation.
OCR will evaluate a school?s good faith effort to conduct a fair, impartial investigation in a
timely manner designed to provide all parties with resolution.

The term ?complainant? as used throughout this section refers to an individual who is the subject of alleged sexual
violence or other types of sexual harassment.

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Page 4 OCR Complaint No. 11-14-2048

An equitable investigation of a Title IX complaint requires a trained investigator to analyze and
document the available evidence to support reliable decisions, objectively evaluate the credibility
of parties and witnesses, all available evidence?including both inculpatory and
exculpatory evidence?and take into account the unique and complex circumstances of each
case. In addition, a recipient should ensure that all designated employees have adequate training
as to what conduct constitutes sexual harassment and are able to explain how the grievance
procedure operates.

Once it decides to open an investigation that may lead to disciplinary action against the
responding party, a recipient should provide written notice to the responding party of the
allegations constituting a potential violation of the school?s Title IX policy, including suf?cient
details and with suf?cient time to prepare a response before any initial interview; Suf?cient
details include the identities of the parties involved, the speci?c section of the code of conduct
allegedly violated, the precise conduct allegedly constituting the potential violation, and the date
and location of the alleged incident. Each party should receive written notice in advance of any
interview or hearing with suf?cient time to prepare for meaningful participation. The
investigation should result in a written report summarizing the relevant exculpatory and
inculpatory evidence. The investigator(s), or separate with or without a
hearing, must make ?ndings offact and conclusions as to whether the facts support a ?nding of
reSponsibility for violation of the school?s sexual misconduct policy.

Recipients are cautioned to avoid con?icts of interest and biases in the adjudicatory process and
to prevent institutional interests from interfering with the impartiality of the adjudication.
Decision-making techniques or approaches that apply sex stereotypes or generalizations may
violate Title IX and should be avoided so that the adjudication proceeds objectively and
impartially.

BACKGROUND

The University is a private university located in the District of Columbia. For the 2013?2014
school year, enrollment included 3,713 undergraduate students and 3,012 graduate students
(3,188 male, 3,537 female). Enrollment for the 2015-2016 school year was 3,480 undergraduate
students and 3041 graduate students (3,438 female; 3,083 male).

The Student was a ?rst year student at the University when the alleged assault occurred. The
complaint alleged that the Student was sexually assaulted by another student in her dorm room
when she was too intoxicated to provide consent. The Student reported the incident to the
University shortly after it occurred in December 2012. The complaint alleges that the University
failed to respond to the Student?s complaint in a prompt and equitable manner.

FACTS AND ANALYSIS
Grievance Procedures

In the course of the investigation, OCR reviewed the grievance procedures that were in place at
the time the Student ?led her complaint with the University. The University subsequently

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Page 5 OCR Complaint No. 11-14-2048

revised its procedures in 2014 and again in 2015. For purposes of determining whether the
University is in compliance with Title IX, the analysis that follows focuses on the current
grievance procedures.

In November 2015, the University adopted the Sexual Offenses Policy and Sexual Offenses
Grievance Procedure that applies to complaints against students. In February 2016, the
University put in place the Sexual Offenses Policy and Interim Sexual Offenses Grievance
procedures that apply to complaints against employees and third parties. Although OCR
identi?ed compliance issues with the University?s grievance procedures that were in place at the
time the Student ?led her complaint, the University remedied these issues when it adopted the
current procedures during the 2015-2016 school year.2

The current policies and procedures can be easily accessed through a webpage devoted to Title
IX issues.3 There is a hyperlink at the top of each policy and procedure to access the other three
relevant policies/procedures, and each policy/procedure makes clear what types of complaints it
applies to g, complaints against students versus complaints against employees or third
parties). ?Sexual offense? is de?ned in each of the policies to include, ?a range of behaviors
including, but not limited to, sexual assault, sexual harassment, dating violence, domestic
violence, stalking, indecent exposure, sexual exhibitionism, use of communication systems to
send unwanted sexual material and messages, prostitution or other voyeurism, allowing others to
view consensual activity, the consensual video or audio recording of sexual activity, or any
conduct prohibited by applicable law.? Each of the policies/procedures contains appropriate
de?nitions of sexual harassment and sexual assault and state that they apply to such conduct that
occurs on campus, during University-sponsored events, and off-campus; a statement about the

2 At the time the investigation was opened in January 2014, the University had separate policies and
procedures for sexual harassment and sexual misconduct, including sexual assault. While the 2014
Sexual Misconduct policy and procedures and the Sexual Harassment Complainant Procedures contained
some of the required elements (notice to students and employees of the procedures, including where
complaints may be ?led; and an assurance that the institution will take steps to prevent recurrence of
harassment and to correct its discriminatory effects on the complainant and others), they failed to include
other required elements. Neither the Sexual Misconduct Procedures, adopted in April 2014, nor the
Sexual Harassment Complaint Procedures, adepted in December 2003, indicated that they apply to
harassment by third parties. The Sexual Harassment Complaint Procedures lack designated timeframes
for the major stages of the grievance process. In addition, a complainant had the option of ?ling a peer
harassment complaint as a violation of the Student Code, which meant that the complaint would be
handled through the Student Judiciary process. However, the Student Judiciary Process does not provide
complainants the same rights as the accused; speci?cally, rights provided to the accused student
(including notice of the date/time of the proceeding, an opportunity to request a reasonable extension of
time. to prepare for the proceeding; reasonable access to review the case ?le; an opportunity to provide
additional information; an Opportunity to respond to the information related to the alleged violation and to
provide the names of material witnesses; the right to be accompanied by one advisor, and receipt of
written notice of the outcome) are not comparably assured for the complainant. 'The Student Judiciary
Process does not include designated timeframes for most of the major stages of the process. Further, prior
to adopting the 2014 Sexual Misconduct Procedures, the University applied the procedures in the Student
Code of Conduct to all sexual misconduct cases involving students, and the code contains no provision
for a thorough and impartial investigation, among other de?ciencies under Title IX.

3 -

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Page 6 OCR Complaint No. 11-14-2048

prohibition on retaliation; an explanation of the obligations of reSponsible employees and a link
to a list of designated responsible employees at the University; title and contact information of
individuals to whom an individual can make a report, including a statement that'a complainant is
always free to contact local law enforcement directly and pursue a simultaneous criminal
complaint, or to ?le with a statement that immediate support measures will be put in place
by the Dean of Students of?ce; a list of support resources available; an explanation of
con?dentiality and the fact that the University may, in some instances, have a duty to investigate
regardless of a request for con?dentiality; and. a statement that the University will conduct
prompt and thorough investigations in all instances, and that the Title IX Coordinator will track
the University?s handling of all complaints and advise participants in the process, as appropriate.
Both procedures also provide equitable appeal rights for both parties.

Students may report incidents of sexual harassment, including sexual violence, to the Department
of Public Safety (DPS), the Dean of Students, or the Title IX Coordinator. The Title IX
Coordinator investigates complaints of sexual harassment. The procedures state that, in all cases,
the Dean of Students appoints a trained resource person to assist the complainant in obtaining
appropriate support services, including counseling, educational support, and medical treatment,
and to provide information and answer questions about the University?s processes. The
procedures state that the Dean of Students ?shall issue no-contact orders, as appropriate, to the
student alleging misconduct (complainant) and the student accused of misconduct (respondent),?
as well as implement other interim remedies such as changes in class schedules and housing.
With regard to con?dentiality, the procedures state that ?when a student reporting an alleged
sexual offense requests con?dentiality, the University will balance that request against its
reSponsibility to protect the community.? The Title IX Coordinator is the ?nal decision maker
with regard to requests for con?dentiality, but the Title IX Coordinator told OCR that his
decisions are often made in consultation with a Title IX Committee composed of himself, the
Deputy Title IX Coordinator, the Dean of Students, the Chief Human Resource Of?cer (CHRO),
and the General Counsel for the University.

The Deputy Title IX Coordinator (the head of the DPS) investigates all complaints of sexual
violence. The procedures state that, ?[o]rdinarily, this administrative investigation will include a
review of statements obtained from either party, interviews with both parties, interviews with
witnesses and review of documentary evidence.? At the end of the investigation, the
investigative report is forwarded to the Dean of Students, the Title IX Coordinator, the Deputy
Title IX Coordinator, and the General Counsel. The Dean of Students determines within 5
calendar days whether there is sufficient information to charge the respondent with a violation of
University policy. If the Dean determines there is suf?cient information to charge the
respondent, the Dean will refer the matter to hearing under the Disciplinary Procedures for
Sexual Offenses Complaints, which are included within the Sexual Offenses Grievance
Procedures and outline equal rights for both parties through the hearing process. The Dean
provides written noti?cation of his determination to both parties, and if the Dean determines that
there is not suf?cient information to proceed to a hearing, the Complainant may appeal the
decision within 5 business days of receiving the Dean?s decision letter, by submitting a letter to
the Vice President for Student Affairs, who will notify both parties of the outcome in writing
within 5 business days.

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Page 7 OCR Complaint No. 11-14-2048

The Disciplinary Procedures for Sexual Offenses Complaints outline speci?c procedures that
apply during the hearing, including that both parties shall have equal access to all information
submitted to the hearing panel; 4 the opportunity to present additional information and witnesses;
the opportunity to participate without being present in the room; the opportunity to pose
questions to the other party indirectly through the presiding of?cer; and the right to be
accompanied by an advisor. The procedures state that, ?testimony regarding any party?s past
sexual conduct will ordinarily not be permitted, except in those instances where there was a prior
sexual relationship between the parties and the testimony may be relevant to the issue of
consent.? The procedures also make clear that a determination will be made by a preponderance
of the evidence standard and that written notice of the outcome will be provided to both parties.
The procedures outline possible sanctions, including suspension and expulsion, and include
reasonable time frames for all major stages of the process. The procedures state that the ?nal
outcome of the hearing can be appealed by either party by submitting a letter to the Vice
President within 5 business days. Both parties are noti?ed in writing of the outcome, generally
within 5 business days.

The policy/procedures for complaints against employees and third parties are similar with some
notable exceptions. Complaints of sexual harassment are investigated by the EEO Of?cer,
although the Deputy Title IX Coordinator investigates all complaints of sexual violence. The
investigative report is forwarded to the Chief Human Resource Of?ce, or for complaints against
faculty, to the Provost. The procedures outline a voluntary informal resolution process, although
the procedures make clear this process will not be used in cases of alleged sexual assault. There
is no hearing process; rather, discipline is determined by the CHRO or the Provost. The
procedures state that either party may appeal the outcome by submitting a letter within 7
calendar days to either the Chief Compliance Of?ce or the Vice President, depending on whether
the party is faculty, staff, or a third party. Both parties are noti?ed in writing of the outcome of
the appeal, ?normally within 10 business days of receipt.?

OCR found that Sexual Offenses Policy and Grievance Procedures for complaints against
students, adopted in November 2015, comply with Title IX because they contain all required
elements for grievance procedures, including notice of which procedures apply to complaints
against students, employees, and third parties; information about where to ?le a complaint;
adequate, reliable, and impartial investigation of all complaints; designated and reasonably
prompt time frames for all major stages of the complaint; the provision of interim measures; a
statement of the prohibition on retaliation; equal rights for both parties throughout the process;
written noti?cation of the outcome for both parties, and equal appeal rights.

As outlined above, the Sexual Offenses Policy that applies to complaints against employees and
third parties is similar to the policy that applies to student sexual misconduct. OCR is concerned,
however, that the Interim Grievance Procedures for complaints against employees do not provide
for equitable rights for the respondent during the investigation of the complaint. Speci?cally, the
procedures outline the investigation process, during which the investigator ?will conduct an
intake meeting with the complaint, interview witnesses, and issue a report to the [Chief Human

Resources It is not clear from the written procedures whether the respondent has the

4 The University informed OCR that hearing panel members are selected from a pool of twenty trained
faculty/staff/administrators. Students do not sit on hearing panels.

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Page 8 OCR Complaint No. 11-14-2048

same opportunity to meet with the investigator or to identify witnesses and evidence. The
Interim Grievance Procedures for complaints against employees and third parties also do not
clearly state the standard of evidence, which is explicitly stated in the procedures for complaints
against students; and they do not specify who makes the ?nal determination as to whether sexual
harassment/violence occurred (that is, whether the determination is made by EEO investigator or
the Chief Human Resource Of?ce or Provost). Additionally, while the University?s commitment
to taking steps to prevent recurrence of harassment and correct its discriminatory effects is
implicit throughout both the student and employee/third party policies, including in its discussion
of con?dentiality and the fact that the University may have a duty to proceed with an
investigation, as well as in its discussion of sanctions, among other places, neither policy states
so explicitly. OCR is aware that the University continues to review its procedures. Although
OCR has not identi?ed any concerns that rise to the level of a violation of Title IX, OCR
recommends that the University consider these concerns going forward.

The University?s Response to the Student?s Complaint

Although the grievance procedures in place at the time the Student ?led a complaint with the
University were not compliant with Title IX requirements as written,5 OCR found that the
University responded to the Student?s complaint and equitably.

The Student ?5 Complaint

The Student reported to a resident advisor (RA) that she thought she had been raped on
December 15, 2012. The RA followed the University?s protocol by contacting the Area
Coordinator, who then contacted DPS. DPS interviewed the Student and the alleged perpetrator
on December 15. Both students left the University that same day for winter break. An Assistant
Dean of Students sent an e?mail to the Student on December 17, 2012, introducing herself and
explaining her role to support students and help connect them with on and off-campus resources;
however, they did not connect for a meeting during break. Within a few days of returning to
campus, the Student met with the Associate Dean of Students who explained the Complainant?s
options, the University?s process, and discussed interim support measure available to the
Student.

Immediately following winter break, DPS initiated an investigation, which included
opportunities for both parties to present witnesses and relevant evidence. An investigative report
was completed on February 18, 2013. The investigative report concluded that based on the
information gathered, ?it is clear that a ?rape? did not occur. [The Student] consented to having
sex with [the alleged perpetrator], and a condom was used during the sexual encounter. By [the
Student?s] own admission to DPS, MPD and her friends, her consent was given based upon
usage of a condom.?

The Student was noti?ed by the Dean of Students on March 22 that an outcome letter was

5 The University told OCR that it processed the Student?s complaint under the Sexual Assault Policy in
place at the time, which refers to the Code of Conduct for disciplinary procedures. .

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Page 9 OCR Complaint No. 11-14-2048

complete; he asked whether she would prefer to schedule a meeting so he could give her the
letter directly or if she wanted him to have it delivered to her in her residence hall. The Student
responded?on March 24 proposing a meeting on March 25, 2013. An ?outcome meeting? was
held on March 25 with the Student, the Dean of Students, the Title IX Coordinator, and the
Deputy Title IX Coordinator. The Student was given an outcome letter that explained that the
University had determined that there was not suf?cient information to support moving forward
with student disciplinary action.

Although the procedures in place at the time did not provide a right to appeal this decision, the
Student ?led an initial appeal on March 27, 2013, which the Dean of Students responded to on
April 2 by requesting that the investigation be re-opened. DPS completed an addendum to the
investigative report on April 23, which the Dean offered to discuss with the Student on April 25.
Ultimately, a meeting was scheduled with the Student and her attorney on May 10, during which
the Dean informed the Student that the decision that there was insuf?cient basis to proceed to a
hearing stood.

Following the Dean?s decision, the case nonetheless continued when the Student?s attorney
requested additional meetings and copies of records. During the summer, there was continual
back and forth between the University and the Student?s attorney and attempts to schedule a
subsequent meeting. The communications between the University and the Student?s attorney
re?ect scheduling dif?culties, including the desire of the Student?s parents to attend the meeting.
Ultimately, the meeting took place on August 21. At the August 21 meeting, the Dean of
Students ultimately decided to offer to hold a disciplinary hearing. The Dean of Students
explained to OCR that his decision was driven, not by a second-guessing of his initial
determination, but rather, by a hope that allowing the case to be heard by a hearing panel would
bring closure for all parties.

The hearing took place on October 3, 2013. Both parties were given equal rights throughout the
hearing process. The Hearing Board concluded that there was not suf?cient evidence to support
a ?nding of sexual assault, and the parties were noti?ed in writing. The noti?cation letter issued
to both parties indicated that the order of no contact between the Student and the alleged
perpetrator would remain in place inde?nitely and that the support of the Counseling Center,
Dean of Students? of?ce, and Campus Ministry remained available to the Student.

The Student appealed the hearing outcome on October 15, 2013. An appeals committee
comprised of the senior associate dean of students and director of campus activities, the director
of disability support services, and the assistant director of campus activities reviewed the appeal,
and the Student was noti?ed in writing on October 21 that the appeal was denied.

Although the Student?s complaint of sexual assault was not substantiated, the Dean of Students
continued to monitor the Student?s class schedule and housing arrangements to minimize contact
with the accused. In August, the Complainant complained that she had seen the accused when
she came out of her building. The Dean of Students told OCR that he offered her the opportunity
to move and that he did not feel it would be appropriate to force the accused to move.
Nonetheless, the Dean discussed with the accused student the possibility of moving, and the
accused student ultimately agreed to move off campus to minimize contact. The accused moved

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in October, well into the fall semester, but the Dean arranged for all on?campus housing charges
to be cancelled so the accused incurred no added expense from the move.

Additionally, because the Student and the accused student are both athletes, in response to the
complaint, the Athletic Director, in conjunction with the Of?ce of the Dean of Students and
Student Programming, organized directed training for all athletes at the University. The
University arranged to have a nationally prominent expert in the ?eld of campus sexual assault
speak to University athletes about her experiences as a survivor of sexual assault. The expert
spoke on the evening of December 2, 2013. All student athletes who were not in class that
evening were expected to attend the presentation, and, according to the University, the Athletics
Director enforced accountability through his coaches. The Athletic Director ?irther ordered a
separate and mandatory session for the football team, which he personally conducted on
February 6, 2014. The session was one hour long and covered the meaning and context of sexual
assault on campus to enable participants to identify a continuum of inappropriate sexual and
dating behavior, the concept of bystander intervention, the role all students can play in
intervention and prevention of sexual and dating violence, and discussed scenarios to help
participants gain the skills needed to effectively intervene as a bystander. Additionally, in the
fall of 2014, the Athletic department introduced the Student-Athlete Code of Conduct through an
assembly led by the Athletic Director. The Code requires generally that all University athletes
abide by the University?s Code of Student Conduct. It also discusses the prohibition on hazing
and alcohol/substance use, as well as the duty to maintain good sportsmanship, academic
integrity, and refrain from inappropriate use of social media. According to the University,
roughly 90% of student athletes attended the assembly in which the Athletic Director discussed
the Code, reinforced his expectations for student-athlete behavior, and obtained signatures on the
Code from athletes. All student athletes not in attendance that evening were required to meet
with their head coach to discuss the Code and sign the document before being permitted to play
for the University.6

6 Beginning in the 2013-2014 school year, the University also signi?cantly improved its effort to train
and bring awareness to all students on the issues of sexual harassment and sexual assault. During that
school year, the University rolled out a new mandatory online training for students, which is an
impressive collection of interactive, engaging, informative, and comprehensive materials on these
subjects. During the 2014-2015 school year, the University also trained student leaders in bystander
intervention, updated publications about sexual violence and bystander intervention, incorporated two
programs regarding sexual violence into new student orientation, including an interactive skit, and also
provided additional training programs during Orientation Extended in September 2014 related to
bystander intervention and self-defense. From September through December 2014, the University hung a
banner in the Student Center encouraging students to download the UASK DC app, which provides
students with information and resources in the event of a sexual assault. Later in fall 2014, the University
provided bystander intervention programs including a bystander pledge, encouraging members of the
University community to ?nd a way to intervene in behavior that is high?risk for sexual violence or
assault. In spring 2015, the University sponsored a number of awareness programs, including Take Back
the Night, and hosted a speaker regarding healthy relationships, consent, and bystander intervention.
Collectively, these efforts demonstrate the University?s ongoing commitment to taking these issues
seriously and working to ensure an environment free from sexual harassment and sexual violence.

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The Student raised to OCR several concerns regarding the University?s process. First, she
indicated that the initial dismissal of her complaint without holding a hearing violated Title IX
because that decision was based on an inadequate investigation. In particular, she contended that
DPS did not fully investigate he: level of intoxication during the initial investigation or provide
suf?cient weight to evidence that she was intoxicated when reaching its conclusions. She
believed investigation was de?cient in that DPS ignored witness testimony that she
was heavily intoxicated, unable to walk, and had passed out at some point during the night, and
failed to interview the University employee who would have witnessed the Student and the
accused enter and sign into her dormitory.

OCR reviewed the full record of the University?s investigation of the Student?s complaint and
interviewed the DPS investigators who responded to the complaint. As the Student indicated,
that record does include some witness testimony (students who saw the Student that night prior
to the assault) that the Student was ?very drunk? and ?staggering.? However, it also includes
witness testimony that immediately after the alleged assault the Student ?didn?t appear drunk?
and seemed to be more in shock than drunk. The DPS investigators explained that they did not
believe the evidence established that the Student was drunk or incapacitated to the point that she
could not give consent. One investigator explained that the professionals who responded to the
incident (the Metr0politan police of?cer and the ambulance driver) described the Student in
terms such as ?conscious and alert.? DPS concluded that these professionals are better trained
and therefore more quali?ed than students who also were drinking at a party to assess whether an
individual is ?drunk? or intoxicated to the point of being unable to consent. Accordingly, DPS
placed more weight on those individuals? assessments of the Student?s level of intoxication.
OCR concluded that the University?s explanation of its weighing of the evidence under the
preponderance of the evidence standard was reasonable and consistent with the requirements of
Title IX.

The DPS investigators acknowledged that they did not interview the University employee who
would have witnessed the Student and the accused enter and sign into her dormitory before the
alleged assault. They were unable to explain to OCR why they had not done so. They indicated
that they did review the sign-in sheet, which showed that the Student had signed in herself and
the accused. By the time the Student?s attorney requested that the employee be interviewed, she
was no longer employed by the University and the University was not able to locate her. OCR
acknowledges that the employee may have been able to provide relevant information regarding
the Student?s demeanor and apparent level of intoxication immediately prior to the alleged
assault. The record re?ects that the University?s investigation included interviews of the
Student, the alleged perpetrator, and nine additional witnesses, including the RA who saw the
Student in the bathroom, and eight students who were drinking with the Student and the alleged
perpetrator prior to the incident or who saw the Student or the alleged perpetrator soon after the
incident. OCR concluded that the University?s failure to identify and interview this employee
did not render its investigation inadequate or unreliable.?

7 Although OCR found no basis to conclude that investigation was not prompt and
equitable, when OCR interviewed University students, a number raised a concern that
questioning of victims could be insensitive and intimidating, in sharp contrast to their reports that
University administrators were generally caring. OCR found that the University regularly trains

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Page 12 OCR Complaint No. 11-14-2048

Second, the Student objected that her victim advocate, a member of the DC. Sexual Assault
Response Team, who was at the hospital with the Student when she underwent a forensic exam,
had not been permitted to testify at the hearing. The Student contended that the advocate could
have provided relevant information about the Student?s level of intoxication during that time.
The University?s Sexual Misconduct Grievance Procedures state that witnesses who are not
members of the CUA community ordinarily will not be invited to serve as a witness in the
proceeding. The Dean of Students explained to OCR that if an unaffiliated person?s information
was believed to be so critical to the issue at hand, the University would invite that person to
testify at the hearing; that situation has never occurred. In this case, his recollection was that the
Student?s attorney asked the University to either have the advocate participate in the hearing or
be interviewed by DPS. The University elected to have DPS speak to her and prepare a report
based on that interview; the Student?s attorney subsequently also submitted a statement from the
advocate because she did not agree with the DPS report. The Dean of Students
acknowledged that the Student?s attorney said that they would like to have the advocate testify at
the hearing, but did not recall there being any dispute about the University?s response that the
information collected from the advocate would be brought before the hearing panel. The Dean
of Students further indicated that the University had been under the impression that the Student?s
attorneys intended the advocate to serve as an expert witness, which the University did not
consider to be appropriate in the University?s non-criminal process.

OCR interviewed members of the hearing panel who decided the Student?s complaint. They
indicated that they fully considered the advocate?s factual information. One hearing panel
member stated that she did not feel she needed any additional information from the advocate and
that if she had she would have asked for it. Another hearing panel member said that although it
is always better to have a witness in person, he believed that if the advocate presented live
testimony consistent with her written statement, the outcome would have remained the same
because there was more information indicating that the Student was not incapacitated than
information indicating that she was. OCR concluded that the University?s decision to allow the
advocate to present written testimony, rather than participate in the hearing did not violate Title
IX or affect the equitability of the process.

Third, the Student argues that the fact that nearly ten months elapsed between the alleged assault
and the hearing indicates that the University substantially mishandled her complaint, that is, that
it was not handled and equitably. While OCR has found that a typical investigation
takes approximately sixty calendar days following receipt of the complaint, the individual
circumstances of any particular case may result in a longer time period. Here, the University
reached its initial decision regarding the Student?s report of sexual assault ninety-seven calendars
days after the report. However, the University explained that the students left for winter break
the day after the incident, and this delayed the investigation process. The University did conduct
an initial interview with the Student before she left for winter break, and the Dean of Student?s

DPS investigators on issues related to Title IX. Nonetheless, OCR encourages the University to
ensure that its ongoing training for DPS investigators includes, among other issues, the potential
impact of trauma on the behavior of victims of sexual harassment or sexual violence, including
how it may impact participation in the investigative process.

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Page 13 OCR Complaint No. 11-14-2048

of?ce reached out time to give her more information about the
University?s process and support measures available. DPS continued with the investigation
after the students returned from winter break. The investigation report was completed
on February 18, 2013. The Dean of Students explained to OCR that he received the report
before spring break, which was the week of March 4, 2013, and the Student was noti?ed
that the University had completed its process on March 22, 2013. The Student then elected to
receive noti?cation in a meeting, which occurred on March 24, rather than receive the written
noti?cation on March 22. While 97 days elapsed between the date the report was made and the
date the University reached its initial decision on the matter, OCR concludes that the University
reached its initial determination when accounting for the intervening winter break of
approximately 30 days and another 7 days for Spring break.

The University ultimately granted a hearing nearly ten months after the incident occurred only in
response to persistent efforts of the Student, through her attorney, to persuade the University that
its decision was in error, and, as the Dean of Students told OCR, in the hopes of bringing
satisfactory closure to the matter for all parties. The hearing was held after the Dean of
Students granted the Student?s appeal, and the hearing panel issued its written decision within a
week of the hearing. OCR did not ?nd that the delays affected the fairness of the process overall
for the complainant.

Accordingly, OCR determined that there was insuf?cient evidence that the University failed to
respond to the Student?s complaint in a prompt and equitable manner. In addition, the
University?s response, including its willingness to hear the Student?s concerns about the decision
not to hold a hearing and its effort to support the Student after the resolution of her complaint,
demonstrates a commitment to supporting its students in these circumstances. As discussed
above, deSpite a ?nding that the accused student was not responsible for sexual assault, the
University made an effort to ensure that the Student did not have to crime in contact with the
accused going forward, particularly in class or because of housing arrangements. Additionally,
deSpite the ultimate conclusion that the Student?s complaint of sexual assault was not
substantiated, the University conducted targeted training for all student athletes regarding sexual
assault and expectations for student-athlete behavior.

OCR is nonetheless concerned with the fact that the University deviated from its grievance
procedures in effect at the time, in the course of resolving the Student?s complaint. The
grievance procedures in effect at the time, that the University acknowledged applying to the
Student?s complaint, did not provide for an opportunity to appeal the Dean?s decision regarding
whether or not the facts warranted initiated the hearing process. The decision to hear the
Student?s appeal of the Dean?s initial decision in March not to refer the matter to hearing and,
ultimately, to hold a hearing appears to have been driven by the University?s effort to be
responsive to the Student?s concerns and bring satisfactory closure for all parties. However, by
entertaining the Student?s appeal and allowing the matter to continue to a hearing, the University
deviated from its written procedures. As discussed above, providing notice to students and
employees of the University?s grievance procedures is an essential element to ful?lling the
regulatory requirement under Title IX to adopt and publish grievance procedures. In this case,
when the University deviated from its procedures in order to be responsive to the Complainant?s
concerns, it subjected the accused to an inequitable process, in violation of Title IX. As noted

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Page 14 OCR Complaint No. 11-14-2048

above, the University now provides for an appeal to its process, and the appeal process should
ensure this issue does not arise in the future.8 Going forward, the University should take care to
implement its procedures as written, to ensure a prompt and equitable resolution for all parties.

Conclusion

This concludes investigation of the complaint. This letter should not be interpreted to
address the University?s compliance with any other regulatory provision or to address any issues
other than those addressed in this letter. This letter sets forth determination in an
individual OCR case. This letter is not a formal statement of OCR policy and should not be
relied upon, cited, or construed as such. formal policy statements are approved by a duly
authorized OCR of?cial and made available to the public. The complainant may have the right
to ?le a private suit in federal court whether or not OCR ?nds a violation.

Please be advised that the University must not harass, coerce, intimidate, discriminate, or
otherwise retaliate against an individual because that individual asserts a right or privilege under
a law enforced by OCR or ?les a complaint, testi?es, or participates in an OCR proceeding. If
this happens, the individual may ?le a retaliation complaint with OCR.

Under the Freedom of Information Act, it may be necessary to release this document and related
correspondence and records upon request. If OCR receives such a request, we will seek to
protect personally identi?able information that could reasonably be expected to constitute an
unwarranted invasion of personal privacy if released, to the extent provided by law.

We appreciate the University?s COOperation in the resolution of this complaint. If you have any
questions regarding this letter, please contact Sara Clash-Drexler, the OCR attorney assigned to
this complaint, at 202-453-5906 or

Alice B. Wender

Mm 6.. 29mm
Director
Of?ce for Civil Rights

District of Columbia Of?ce

cc (Via email):Larry Morris, General Counsel for the University

8 OCR identi?ed no available remedy for the accused student, given that he was ultimately found not responsible.