UNITED STATES DEPARTMENT OF EDUCATION REGION X

ALASKA
OFFICE FOR CIVIL RIGHTS AMERICAN SAMOA
GUAM
915 2ND AVE., SUITE 3310 HAWAII
SEATTLE, WA 98174-1099 IDAHO
MONTANA
NEVADA
NORTHERN MARIANA
ISLANDS
December 30, 2016 OREGON
WASHINGTON

Mr. Pat Skorkowsky

Superintendent
Clark County School District
5100 West Sahara Avenue
Las Vegas, Nevada 89148

Re: Clark County School District

OCR Reference No. 10111376

Dear Superintendent Skorkowsky:

The U.S. Department of Education (Department), Office for Civil Rights (OCR) has
completed its investigation of the referenced complaint against the Clark County School
District (district). The complaint alleged that, during the 2010-2011 school year, the
district discriminated against a student on the basis of sex and retaliated against him.

OCR enforces Title IX of the Education Amendments of 1972 (Title IX) and its
implementing regulations 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 district is a recipient of federal financial assistance
from the Department and is subject to these regulations.

OCR investigated the following legal issues:

1. Whether the district properly appointed a Title IX coordinator and

disseminated a notice of nondiscrimination, as required by Title IX
at 34 C.F.R. 106.8 and 106.9.

2. Whether the district adopted and published grievance procedures that

provide for a prompt and equitable response to complaints and reports
of sexual harassment, as required by Title IX at 34 C.F.R. 106.8.

3. Whether the district responded promptly and equitably to complaints,

reports, and incidents of sex-based harassment of the student by district
staff and classmates, as required by Title IX at 34 C.F.R. 106.8 and
34 C.F.R. 106.31.

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
Page 2 - OCR Reference No. 10111376

4. Whether the district intimidated, threatened, coerced, or discriminated

against the student for the purpose of interfering with a right or privilege
secured by Title IX and its implementing regulations, in violation of 34
C.F.R. 100.7(e) made applicable to the Title IX regulations by 34 C.F.R.
106.71.

Legal Overview

The Title IX regulation at 34 C.F.R. 106.31(a) provides generally that, except as

provided elsewhere in the regulation, 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 academic, extracurricular, research, occupational training, or other education
program or activity operated by a recipient.

Sexual harassment of a student can deny or limit, on the basis of sex, the students ability
to participate in or to receive benefits, services, or opportunities in a schools program.
Sexual harassment of students is, therefore, a form of sex discrimination prohibited by
Title IX.

The Title IX regulations at 34 C.F.R. 106.8 and 106.9 require a recipient to designate
a Title IX Coordinator, implement specific and continuing steps to provide notice that it
does not discriminate on the basis of sex in its education programs or activities, and adopt
grievance procedures.

These regulatory provisions are discussed in more detail below.

Summary and Background Information

For the reasons briefly stated here and discussed further below, OCR determined that the
districts sexual harassment policies and procedures do not comply with the requirements
of Title IX. Specifically, OCR determined that the districts notice of nondiscrimination
does not accurately state the districts legal obligation to not discriminate under Title IX,
and fails to clearly refer questions concerning Title IX to the districts acting Title IX
coordinator or to OCRs Assistant Secretary. The differing, and at times conflicting,
provisions contained within the districts grievance procedures do not support a finding
that the district offers a prompt and equitable resolution process. Additionally, OCR
determined that the district failed to respond promptly and equitably to complaints of
sex-based harassment of the student by district staff and students. The delay of
approximately 45 days between the time the accused received written notice and the
alleged victim received verbal notice was not prompt or equitable. OCR also found
that district staff had notice of possible sex-based harassment by classmates but never
Page 3 - OCR Reference No. 10111376

followed up on this information or took any steps to address the alleged name-calling.
However, OCR found insufficient evidence that the district retaliated against the student.
OCRs findings of fact and analysis are set forth below. To address the compliance
concerns identified by OCR during its investigation, the district has agreed to take the
actions provided for in the enclosed Resolution Agreement.

The Clark County School District is a public school district located in Las Vegas,
Nevada. According to OCRs Civil Rights Data Collection (CRDC), the district is
comprised of 361 schools and had a total enrollment of 313,557 students during the
2011-2012 school year. The student who is the subject of this complaint attended
XXXXXXXXXXXX during the 2010-2011 school year. According to the CRDC,
XXXXXXXXX had a total enrollment of 1,789 students during the 2011-2012 school
year.

OCR conducted interviews of the students parent and district personnel. OCR reviewed
the districts policies and procedures regarding bullying, cyberbullying, and harassment,
filing harassment complaints, discipline, and student conduct, as well as the districts
materials disseminated to the school community regarding these policies and procedures.
OCR also reviewed the reports of discrimination, harassment, and retaliation against the
student that were made to the district, and documentation of the districts response to
each report, including witness statements, staff notes, discipline referral documentation,
police statements, discipline records, and documentation of the investigation outcome
provided to involved staff. OCR also reviewed the students education records.

1. Title IX Coordinator

The Title IX implementing regulation at 34 C.F.R. 106.8(a) requires that a recipient

designate at least one employee to coordinate its efforts to comply with and carry out
its responsibilities under the law. The designated employee is referred to by OCR as
the Title IX coordinator. The recipient is further required by this regulation to notify all
students and employees of the name, office address, and telephone number of the Title IX
coordinator.

During the time period of this investigation up until the spring of 2016, the districts
notice of nondiscrimination (discussed below) designated different employees as
responsible for handling complaints of discrimination. Inquiries regarding employment-
related discrimination issues, including Title IX, were directed to the districts Diversity,
Affirmative Action and Title IX coordinator (Title IX coordinator). Students, parents,
and other non-employee program participants who felt discriminated against were
directed to initiate a complaint by contacting the principal of the school in question.
Page 4 - OCR Reference No. 10111376

Additionally, the notice of nondiscrimination stated that the Executive Director of

Instructional Support/Student Activities (Executive Director) could be contacted for
concerns related to athletics and activities, including those related to Title IX.
The district did not state whether the principals or the Executive Director was designated
as the Title IX coordinator for discrimination issues related to students, parents, or other
non-employee program participants. Accordingly, up until the spring of 2016, it was
ambiguous who the district had designated for the purpose of satisfying the requirements
of 34 C.F.R. 106.8 with respect to non-employment related discrimination.

In the spring of 2016, the district amended its notice of nondiscrimination and, in that
revised document, the district designated its acting Title IX coordinator as the
employee responsible for complaints of discrimination not related to disability. Students,
parents, and other program participants who want to initiate a discrimination complaint
are directed to contact the school principal who will then work with the acting Title IX
coordinator in responding to the complaints. The address, telephone number, and e-mail
address for the acting Title IX coordinator is provided in the districts amended notice
of nondiscrimination.

For the reasons described above, OCR finds the district currently meets the regulatory
requirements for designating a Title IX coordinator. In the agreement resolving this
complaint, the district has committed to taking the steps necessary to ensure compliance
with Title IXs requirements as it transitions from an interim to a permanent Title IX
coordinator.

2. Notice of Non-discrimination

The Title IX implementing regulation at 34 C.F.R. 106.9 requires that a recipient have
a notice of nondiscrimination that: (1) contains information that the recipient does not
discriminate based on sex in its educational activities or programs, that Title IX requires
the recipient not to discriminate based on sex, and that this nondiscrimination policy
applies to students, employees, and applicants for employment, and applicants for
admissions; (2) states that questions to the recipient concerning the application of
Title IX and its implementing regulations may be referred to the Title IX coordinator
or to OCRs Assistant Secretary; and (3) is disseminated prominently in the recipients
online and printed publications, including course catalogs, application forms, and
bulletins, to students, employees, and applicants for admissions and employment.

At the time of the alleged harassment, the district had in effect a notice of non-
discrimination (Notice 1) which stated that the district would not knowingly
discriminate against any person on the basis of race, creed/religion, color, national
or ethnic origin, sex, disability, marital status or age, in admission or access to,
Page 5 - OCR Reference No. 10111376

treatment of employment in, or participation in its programs and activities, pursuant

to federal and state laws including Title IX. As discussed above, concerns about
discrimination involving employees were referred to the districts Diversity, Affirmative
Action Compliance, and Title IX coordinator. Discrimination concerns related to
students, parents, and other non-employee program participants were referred to the
school principal. The Executive Director was also listed as a contact for concerns related
to athletics/activities including Title IX. However, as discussed above, it was not
clearly stated whether the principals or the Executive Director were designated as the
Title IX coordinator for non-employee related discrimination concerns. A reference to
OCR was also not included in Notice 1. A copy of Notice 1 was included in the districts
Back to School Reporter publication and on the districts website.

The district amended Notice 1 (Amended Notice) in the spring of 2016. The Amended
Notice includes additional protections against discrimination based on gender identity,
expression, or sexual orientation. Students, parents, and other program participants who
feel discriminated against and want to initiate a complaint are directed to contact the
principal of the school in question. The Amended Notice also states that the building
will work with the designated employee and respond to the inquiry within a reasonable
period of time. The designated employee responsible for resolving complaints
concerning discrimination, not related to disability, is the acting Title IX coordinator
in the Chief Educational Opportunity Office, Educational Opportunity Unit.
A reference to OCR is not included in the Amended Notice. The Amended Notice
can be found on the districts website.

The districts Amended Notice contains a nondiscrimination statement but it does

not accurately state the districts legal obligation to not discriminate under Title IX.
The districts notice of nondiscrimination is incorrectly limited to instances where
the district knowingly discriminates on the basis of sex. This is a qualification
not provided for in 34 C.F.R. 106.9(a), which states simply that a recipient will not
discriminate on the basis of sex. Moreover, as discussed below in relation to harassment
by district employees, there may be instances in which a recipient is responsible for
discriminatory conduct regardless of whether or not it had either actual or constructive
notice of sex-based harassment.

The Amended Notice also fails to clearly refer questions concerning Title IX to the
districts acting Title IX coordinator or to OCRs Assistant Secretary. Rather, the
Amended Notice refers parents to the building principal and states that the principal
will work with the designated employee to respond.
Page 6 - OCR Reference No. 10111376

Because the Amended Notice, as written, incorrectly limits the districts obligation and
does not clearly refer all Title IX matters to the acting Title IX coordinator, the district
has committed to revising the Amended Notice under the agreement.

3. Grievance Procedures

The Title IX implementing regulation at 34 C.F.R. 106.8(b) states that a recipient shall
adopt and publish grievance procedures providing for the prompt and equitable resolution
of student and employee complaints alleging any action which would be prohibited by
Title IX.

Title IX does not require a recipient to provide separate grievance procedures for sexual
harassment complaints. However, any procedures used to adjudicate complaints of
sexual harassment, including disciplinary proceedings, must afford the complainant and
the accused a prompt and equitable resolution. OCR has identified a number of elements
in evaluating whether a school's grievance procedures are prompt and equitable,
including whether the procedures provide for

Notice to students, parents of elementary and secondary students, and

employees of the procedure, including where complaints may be filed.

Application of the procedure to complaints alleging harassment carried

out by employees, other students, or third parties.

Adequate, reliable, and impartial investigation of complaints, including

the opportunity to present witnesses and other evidence.

Designated and reasonably prompt timeframes for the major stages of

the complaint process.

Notice to the parties of the outcome of the complaint.

An assurance that the school will take steps to prevent recurrence of any
harassment and to correct its discriminatory effects on the complainant
and others, if appropriate.

A grievance procedure applicable to sexual harassment complaints cannot be prompt

or equitable unless students know it exists, how it works, and how to file a complaint.
Thus, the procedures should be written in language appropriate to the age of the schools
students, easily understood, and widely disseminated.
Page 7 - OCR Reference No. 10111376

The district has at least three regulations relevant to assessing the framework for
resolving harassment complaints. Both Notice 1 and the Amended Notice referred
to Regulation 1213.1, which could reasonably be understood by parents to be the
appropriate process to follow if they would like to file a complaint/grievance.

Regulation 1213.1 was first adopted on July 11, 1963, and last revised on April 22, 2004.
The regulation is posted on the districts website. The regulation describes itself as the
proper procedure to be utilized by persons who have concerns. However, the regulation
does not specifically state its application to complaints alleging harassment carried out
by employees, other students, or third parties.

According to Regulation 1213.1, the district has an informal process whereby individuals
with a concern may confer with an employee and/or supervising staff member to resolve
their concern. It is the responsibility of the site administrator to advise the concerned
individual of the procedure, to resolve concerns, and to assist them in obtaining a Public
Concern Form. Concerns that are not resolved informally may be submitted in writing
to Public Affairs using the Public Concern Form (CCF-660).

Regulation 1213.1 has designated timeframes for the resolution and appeal of a
complaint. Specifically, within two working days, the district is required to send an
acknowledgement of receipt of the concern. A supervising administrator is required
to consult with the person filing the concern within three school days of receipt, unless
the person filing the concern agrees to a delay. The administrator then conducts an
investigation within eight school days, unless the person filing the concern agrees to a
delay. If an employee is the focus of the concern, the employee will be made aware of
the specific concerns and given the opportunity to comment, explain, and present facts
in response. The regulation is silent as to whether similar rights are afforded when a
student is the focus of the concern.

Regulation 1213.1 affords notice to the parties of the outcome of the complaint.
Specifically, it states that the administrators response will be in writing and copies
provided to all parties involved. If the response is unsatisfactory, the person has the
right to appeal within five working days and Public Affairs will then notify the next
appropriate administrator that the concern is still unresolved. It is not stated whether the
individual accused of harassment also has the right to appeal. The second administrator
has five working days to provide a decision. If the second administrators written
response is also unsatisfactory, the concern may continue to be referred up the chain of
command within the same five working day timelines, until it reaches the superintendent.
The superintendent may issue a final decision in the matter, or refer the concern to an
independent mediator. The final decision by the superintendent will be provided within
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ten working days of receipt. There is no further description of the next steps if an
independent mediator is chosen.

Regulation 1213.1 does not state an assurance that the school will take steps to prevent
recurrence of any harassment and correct its discriminatory effects on the complainant
and others, if appropriate.

In addition to Regulation 1213.1, the districts Back to School Reporter publication

contains an article providing information regarding district policies and regulations
that specifically prohibit student harassment. This publication describes a separate
grievance complaint procedure contained in district Regulation 5141.2.

Regulation 5141.2 is not referenced in either Notice 1 or the Amended Notice. It was
adopted on April 23, 1998, and last revised on June 28, 2001. The regulation specifically
states that it applies to complaints alleging harassment carried out by employees, other
students, or third parties. It also includes a definition of harassment, as well as examples
of prohibited conduct.

Regulation 5141.2 states that any student who feels that he or she is a victim of
harassment should immediately contact his or her teacher and/or principal, unless the
principal or teacher is believed to be part of the harassment, in which case contact should
be made with the appropriate assistant regional superintendent. The opportunity to
present witnesses and other evidence is required by Regulation 5141.2. The principal
must inform parties of the disposition of the complaint and take appropriate follow-up
actions in an attempt to ensure there are no further incidents or retaliation. The regulation
does not designate timeframes for the major stages of the complaint process; rather,
investigations are to be conducted in accordance with Regulation 4110.

Regulation 4110 governs employment discrimination, harassment, and sexual

harassment. It was adopted on June 28, 2001, and last revised on April 12, 2012.
The internal investigative procedures described in this regulation do not designate
timeframes for the major stages of the complaint process. Instead, it states that the
supervising administrator will notify the Executive Manager, Diversity and Affirmative
Action Programs (Executive Manager) as soon as possible after receiving an oral or
written complaint. Additionally, it is unclear how notice of the outcome is provided
to the parties. Regulation 4110 states that, if the Executive Manager conducts the
investigation, he or she will submit a written and/or oral report to the supervising
administrator, who will then take appropriate action.
Page 9 - OCR Reference No. 10111376

OCR determined that the districts sexual harassment policies and procedures do not
provide for the prompt and equitable resolution of sexual harassment complaints as
required by Title IX in, at least, the following respects.

OCR found that the district has at least two grievance procedures that govern resolution
of harassment complaints. Additionally, one of the procedures incorporates by reference
the grievance procedures applicable to resolution of employment discrimination
complaints. None of these three grievance procedures contain all the requisite elements
necessary to establish a prompt and equitable procedure.

Specifically, OCR found that Regulation 1213.1 does not specifically state its application
to complaints alleging harassment carried out by employees, other students, or third
parties. The regulation also does not include an assurance that the school will take steps
to prevent recurrence of any harassment and correct its discriminatory effects on the
complainant and others, if appropriate. While Regulation 5141.2 does include these
elements, it fails to designate timeframes for the major stages of the complaint process.

Finally, these regulations, when taken together, create an ambiguity regarding where
a student or parent who wishes to file a complaint regarding harassment should go.
According to the Regulation 1231.1, the complainant should file with Public Affairs.
However, Regulation 5141.2 says that the complaint should be raised with the principal
or assistant regional superintendent. Neither regulation refers to the districts acting
Title IX coordinator. Additionally, regulations 1231.1 and 5141.2 afford differing
standards regarding how notice of the outcome will be afforded the parties and whether
there is a right to appeal.

As stated above, a grievance procedure cannot be prompt or equitable unless students and
parents know it exists, how it works, and how to file a complaint. The differing, and at
times conflicting, provisions contained within the districts grievance procedures do not
support a finding that the district offers a prompt and equitable resolution process.
Accordingly, OCR has determined that the districts grievance procedures do not comply
with the requirements of Title IX.

4. Districts Response to Alleged Harassment of the Student

As noted above, sexual harassment of a student can deny or limit, on the basis of sex,
the students ability to participate in or to receive benefits, services, or opportunities
in a schools program, in violation of the Title IX regulation at 34 C.F.R. 106.31.
Recipients generally provide aid, benefits, and services to students through the
responsibilities they give to employees. If an employee who is acting (or who reasonably
appears to be acting) in the context of carrying out these responsibilities over students
Page 10 - OCR Reference No. 10111376

engaging in sexual harassment, the recipient is responsible for the discriminatory conduct
regardless of whether it had notice of the conduct, and the recipient must remedy the
effects of such conduct. In contrast, with respect to harassment by students or other third
parties who are not employees, a recipient is responsible only for harassment about which
it knew or should have known.

Once a school knows, or is imputed to have known, of possible sexual harassment of

students, whether carried out by employees, other students, or third parties, it should take
immediate and appropriate steps to investigate or otherwise determine what occurred and
take prompt and effective steps reasonably calculated to end any harassment, eliminate
a hostile environment if one has been created, and prevent harassment from occurring
again. If a schools inaction as to student or third-party harassment allows a student to
continue to be subjected to a hostile environment, then the school is responsible for
remedying the effects that reasonably could have been prevented had it responded
promptly and effectively. These steps are the schools responsibility whether or not the
student who was harassed makes a complaint or otherwise asks the school to take action.

Alleged Harassment by District Employee

The student is recognized as a student with a disability under the Individuals with
Disabilities Education Act. He was enrolled in theXXXXXXXXXXXX during the 2010-
2011 school year. On March 1, 2011, the students parents made a verbal report to the
school dean about inappropriate comments that were allegedly made by the students
special education teacher. The parents submitted a written statement on March 2, 2011,
providing detailed information about the comments. Specifically, the parents reported
that the student left them a voicemail message on January 10, 2011, in which the special
education teacher could be heard speaking in the background and saying, I love you,
[student], I love you, in a falsetto voice. The parents also reported that, while talking
with the student on February 25, 2011, about a meeting they had with the students
special education and mathematics teachers, the student reported to his parents that an
incident occurred where the special education teacher held a pencil to his crotch and told
the student to come and get it. According to the parents, the student told them he had
reported the incident to the special education classrooms instructional aide (IA), who
told him the teacher was probably joking but that he should tell his parents. The parents
report indicated that the student could not remember the specific date of this incident.

Between March 1 and 4, 2011, the dean and principal investigated the parents
allegations. With respect to the pencil incident, administrators interviewed the student,
the special education teacher, and the IA, and obtained written statements. The students
written statement indicates that after the teacher said, Come and get it, the student
replied No. The teacher then said, Come on [student], Im just giving you a taste of
Page 11 - OCR Reference No. 10111376

your own medicine, and tried to hand him the pencil. According to the dean, none of
the other students in the class were interviewed because the student told him that no other
students witnessed the incident. During the districts investigation and in interviews with
OCR, the teacher denied ever holding the pencil as described or making the alleged
comments. The IA stated that she never heard the teacher make any such statement,
nor did the student report the statement to her.

The administrators determined that, because the student could not identify when the
alleged pencil incident occurred and the teacher denied that it happened, there was
insufficient evidence to substantiate that the pencil incident took place.

With respect to the teachers falsetto comment in the background of the voicemail
message, the principal spoke to the teacher about it and determined that, while it was
a bad joke, it was not sexually inappropriate. When interviewed by OCR, the teacher
said that the student told him he was calling a female former student, and he repeated
the students name in a falsetto voice during the call to tease the student. The teacher
said he later learned the call had been made to the students parents, not another student
as the student had reported, and he discussed the incident with the students parents
and apologized.

On or about March 4, 2011, the parents requested that the student be transferred out of
the teachers special education class. The parents request was granted. The special
education teacher was verbally notified of the outcome of the investigation and that the
concerns would not be pursued further. The parents were not notified of the outcome.

On March 16, 2011, the student provided a written statement indicating that, sometime
in mid-September 2010, prior to transferring out of his special education class, a
classmate called him gay. The student responded, How about you go suck a dick?
When the classmate replied affirmatively, the special education teacher from the prior
special education class told them both to stop and said, [The student] probably sucks
his own dick.

The dean investigated the students March 16, 2011, allegation concerning the special
education teacher and on March 16 and 17, 2011, spoke to two of the three other students
in the classroom and the IA who were all allegedly present during the incident. The dean
asked each student and the IA if the teacher ever made inappropriate comments in the
classroom. One student reported that the teacher once told them about an incident where
he was stopped at the Mexico-U.S. border and was strip-searched, but that he had never
said anything else inappropriate. The second student said that he had never heard either
the teacher or the IA make any inappropriate comments but that the student who is the
subject of this complaint made several inappropriate comments, including suck my
Page 12 - OCR Reference No. 10111376

dick to the teacher, and tried to start fights. The IAs statement indicated that she never
heard the teacher make the alleged comments. During an investigatory conference with
the special education teacher, the teacher denied the allegation.

Administrators determined that: (1) the other persons who were allegedly present did not
corroborate the students account, (2) the teacher denied ever making the statement, and
(3) the student was vague about when the incident occurred. Accordingly, there was
insufficient evidence to substantiate that the incident occurred.

On March 28, 2011, the dean wrote a memorandum summarizing the investigation
findings and concluded that the evidence was insufficient to substantiate that the teacher
had made the statement to come and get it concerning the pencil or the comment the
teacher allegedly made in mid-September 2010. The memo did, however, direct the
teacher to always maintain professionalism when communicating with both parents and
students. The teacher was provided with the memorandum about the outcome of the
investigation on March 28, 2011. The parents were not provided with written or verbal
notice of the outcome of the investigation until a meeting on May 12, 2011, which the
district convened to address an unrelated matter concerning the students behavior.
The principal told OCR that he did not inform the parents about the outcome of the
investigations because district administrators had told him that the investigation of the
teacher was a confidential personnel matter.

Alleged Harassment by Peers

The parent informed OCR that the student is XXXXXXXXX for which he is subjected to
harassment by classmates. However, according to the parent, district staff never
addressed this harassment with classmates. Rather, district staff asked the student to
change his behavior in order to avoid the harassment.

On May 9, 2011, the students mathematics teacher sent an e-mail to the school dean,
the special education facilitator, and the school psychologist about the student.
The e-mail states:

I had a conversation with [the student] today in the hallway. Had to ask him
to leave class. He was walking around swinging his hips and flipping his
hands. We heard quite a few mumbled fag words, [the IA] asked him to
stop. He played dumbstop what? So I asked him to step outside and
talked to him about how the entire school is laughing at him because of that.
I told [the school psychologist] because I dont want him to think anything I
said was inappropriate. Personally, I think its better coming from a man
Page 13 - OCR Reference No. 10111376

than me. Maybe you [the dean] can follow up on thisIts causing a lot of
disruption in class.

After receiving the e-mail on May 9, the dean met with the student later that day to
discuss the hallway conversation. At the deans request, the student provided a written
statement regarding the incidents of May 9, 2011, which states:

[The teacher] told me to go out to the hallway and told me I wasnt in

trouble. So I said ok and I went out there. [She] told me that people were
saying that I walk like a fag and a queer. I said ok. [She] said But
[youre] not a fag and I said ok to make [her] stop saying that in front of
other teachers and the worse [sic] was when the bell rang but thank god [she]
stop[ped].

The mathematics teacher informed OCR that, on May 9th, she was sitting in the back of
the classroom when the student got out of his seat and began to rub his genitals against
her arm. The math IA yelled at him to stop. The student repeatedly said, What?
He then proceeded to walk away, flapping his arms and moving his hips in an
exaggerated way. The teacher confirmed that she heard classmates calling the student
a fag. The teacher told the student to go out into the hallway, where she asked,
What are you doing? The student responded, You think Im a fag. The teacher said,
Thats not what Im talking about. The student responded, You think Im queer.
The teacher said she realized she was not going to get anywhere and ended the
conversation.

In response to OCRs questioning regarding whether the mathematics teacher told the
student that he should change the way he was walking, the mathematics teacher stated:

No, [the student] told me that the kids were laughing at him and calling him
a fag. I told him that maybe he should stop walking that way, but that
wasnt what I was talking about and kept trying to get the conversation back
to what he was doing to me.

The mathematics teacher also told OCR that, other than the comments on May 9th, she
never saw classmates harass the student. Rather, she felt that the student was the one
who harassed female students and staff. She described incidents in which the student
would tell her she looked very sexy today and would blow kisses to her and female
classmates. It became a serious concern for her, so she and the special education teacher
had a conference with the students parents on February 25, 2011. According to the
teacher, during this conference, the parents reported that the student had complained
Page 14 - OCR Reference No. 10111376

about being bullied and laughed at by other children at an off-campus party because
he was acting effeminate.

The school psychologist informed OCR that he received the mathematics teachers
May 9th e-mail and met with the student on May 10, 2011. According to the
psychologist, it was his understanding that the mathematics teacher told the student
that the way he was walking would draw attention and classmates would pick on him.
The psychologist told the student that the teacher was trying to help the student behave
in ways that would help him not get him picked on. The psychologist did not believe
that the mathematics teacher said anything about whether the student was gay or not.
According to the psychologist, what was being reported to him by the mathematics
teacher was that the student was acting in an exaggerated manner and that it was a
behavior as opposed to the way the student normally walked.

The IA informed OCR that she was present for the incident on May 9th. The IA said
she was sitting by the student and the mathematics teacher was sitting in the back of the
classroom. The student got up and walked up to the teacher, but the teacher pulled away.
The student did it again and then tried to get behind her. The IA told the student twice
to stop and go to the front of the classroom. The teacher then took the student out into
the hallway, but the IA said that she did not know what they talked about.

The IA reported to OCR that she knew the teacher was going to speak with the student
about the way he was walking so that he would not be teased, but said that she was not
aware of whether the teacher did so when they were out in the hallway. She described
the students way of walking as a wiggle, feminine, but more so, the hands out and the
pinky up. The IA told OCR that she did not see or hear teasing from classmates, but
said that she was sure they did. After class, the IA said that she spoke to the teacher
to confirm whether the student was in fact rubbing himself on the teachers arm, as she
had perceived. The teacher confirmed to her that the contact occurred. The IA also
informed OCR that the student once reported to her that another classmate had called
him gay, but could not recall the details of when the incident occurred. She told OCR
that she reported the matter to the counselor, but did not know how the matter was
addressed after she reported it.

A dean told OCR that, other than the May 9, 2011, incident, he was only aware of two
other incidents involving classmates making comments to the student. On January 24,
2011, a female classmate announced to other students that the student was bisexual.
The district investigated that incident, suspended the female student, and spoke with her
about appropriate ways to speak about other students. The second incident occurred on
March 28, 2011, when a classmate called the student a fag, and the student responded
by putting a post-it note on the back of the classmates shirt that stated, Im gay.
Page 15 - OCR Reference No. 10111376

Both students were disciplined, but because it was determined that the student had
developmental disabilities and did not understand the meaning of the word fag,
the situation was addressed with the involvement of his special education team,
parents, and teachers.

The dean said that he did not investigate whether classmates called the student a fag
on May 9, 2011, because it was his understanding that the teacher had addressed the issue
with the class. The math teacher stated that she did not follow-up with the class and took
no further action because she assumed the dean or psychologist would follow-up after she
notified them of the incident.

The IA who worked in the students original special education class and in the students
reading, English, and social studies classes (a different person than the math IA) said
that the student never reported any harassment to her. The IA said that she never saw
classmates making fun of the student or calling him names but that she had seen the
students go back and forth with making fun of each other. The IA said that, in her
experience, the student had issues with not respecting personal space and making
frequent comments with a lot of sexual innuendo. She also filed a formal statement
with the district on May 13, 2011, about the student inappropriately touching her chest.

A second dean reported that she had received one report from the student earlier that
year. The student told the dean that a classmate had called him a sex toy, but there
were no witnesses to that incident.

OCR determined that the districts response to the students complaints of sex-based
harassment by district staff was not prompt and equitable as required by Title IX.
Specifically, OCR found that the parents orally complained to the district on March 1,
2011. On March 2 and 16, 2011, the district received written statements complaining
about comments allegedly made by the students special education teacher. The district
conducted an investigation of the allegations and determined that the evidence did not
substantiate the allegations. A district administrator then drafted a memorandum
summarizing the investigations findings and provided it to the special education teacher
on March 28, 2011. However, the district did not provide a similar notice to the students
parents. Rather, approximately 45 days later, during a meeting with the students parents
on May 12, 2011, regarding an unrelated matter, the principal verbally informed the
parents of his determination that the evidence was insufficient to substantiate the March
allegations.

The districts position is that it was not required to provide written notice of the outcome
to the student under Regulation 5141.2. While the district acknowledges that written
notice would have been required under Regulation 1231.1, the district argues that the
Page 16 - OCR Reference No. 10111376

student never completed a Public Concern Form and, therefore, the complaint was not
governed by the grievance procedures contained in Regulation 1231.1.1 A recipients
obligation to provide notice arise under Title IX, and a recipient cannot rely upon its
own procedural requirements to justify a failure in providing the required Title IX notice.
The delay of approximately 45 days between the time the accused received written notice
and the alleged victim received verbal notice was not prompt or equitable.

As for the alleged peer harassment, OCR found that district staff had notice of possible
sex-based harassment from at least the following: on January 24 when a classmate
announced the student was bisexual, on February 25 when the students parents
complained of bullying, on March 28 when the student was called a name, and on May 9
when the mathematics teacher overheard derogatory comments made by classmates.
However, there is no evidence that the district followed up on this information or took
any steps to address the alleged name-calling. While a dean told OCR that he thought
the math teacher had spoken to the other students in her class regarding the May 9th name
calling, the mathematics teacher states that she did not follow up with the other students
about this incident, as she thought it would be handled by someone else. The only
evidence of steps taken to address any incident is the mathematics teacher taking
the student into the hall to discuss the other students reaction to his behavior. The
information the mathematics teacher provided to OCR in interviews, that she did not
counsel the student to walk differently in order to avoid harassment from classmates,
was inconsistent with the information she provided to district administrators in an e-mail
dated May 9th.

In sum, OCR determined that the districts response to the students complaints of sex-
based harassment by an employee did not comply with Title IX and that the district failed
to respond promptly and equitably to complaints, reports, and incidents of sex-based
harassment of the student by classmates of which it had notice as required by Title IX.

5. The Districts Alleged Retaliation

The Title IX implementing regulation at 34 C.F.R. 106.71 incorporates the prohibitions

against retaliation found in the Title VI of the Civil Rights Act of 1964 regulations at
34 C.F.R. 100.7(e). As applied to Title IX, the regulation provides that no recipient or
other person shall intimidate, threaten, coerce, or discriminate against any individual for

1
The principal offered OCR a different explanation. He said he refrained from providing similar notice to the
student because he believed it was a confidential personnel matter. If the alleged harasser is a teacher, administrator,
or other non-student employee, the Family Educational Rights and Privacy Act (FERPA) would not limit the
schools ability to inform the complainant of any disciplinary action taken. See, Revised Sexual Harassment
Guidance: Harassment of Students by School Employees, Other Students, or Third Parities n.102 (January 19,
2001).
Page 17 - OCR Reference No. 10111376

the purpose of interfering with any right or privilege secured by the Title IX regulations,
or because he or she has made a complaint, testified, assisted, or participated in any
manner in any investigation, proceeding or hearing under Title IX.

In determining whether retaliation occurred, OCR reviews (1) whether the complainant
or alleged injured party engaged in a protected activity; (2) whether the complainant
or alleged injured party experienced a materially adverse action by the recipient; and
(3) whether there is a causal connection between the protected activity and the materially
adverse action. If the evidence demonstrates a prima facie case of retaliation, OCR
reviews whether there is a facially legitimate, non-retaliation reason for the adverse
action that is not pretextual.

According to the parent, the students mathematics teacher retaliated against the student
by falsely accusing the student of rubbing his genitalia on her after the parent raised
complaints of sex-based harassment on May 9, 2011.

The students mathematics teacher sent an e-mail to the school dean at 11:25am on
May 9th in which she reported the hallway conversation that she had with the student
about the way he walked. The school dean spoke with the student that day and
telephoned the students parent at work to inform her of what the teacher reported.
According to the parent, during the May 9th conversation with the dean, she complained
to the dean that the classmates who made derogatory comments about the student had
not also been taken into the hallway by the mathematics teacher.

The dean informed OCR that he was not aware at the time of his May 9th call with
the parent that the IA and mathematics teacher were raising concerns that the student
engaged in inappropriate physical contact with the teacher.

OCR asked the teacher why her May 9, 2011, e-mail did not include information about
the students alleged inappropriate contact. The teacher indicated that she was in shock,
the incident was embarrassing, and she did not want to put such sensitive information in
an e-mail.

On May 10, 2011, the IA reported to the assistant principal the students alleged
inappropriate contact with the mathematics teacher and filed a written report about it.
Upon learning of the IAs report, the dean spoke with the mathematics teacher, who
confirmed the students inappropriate contact. The mathematics teacher filed a police
report concerning the students alleged contact the following day. There is no evidence
that the IA or the mathematics teacher were aware of the May 9th phone call between the
dean and the parent in which the parent raised concerns about the mathematic teachers
handling of the May 9th classroom incident.
Page 18 - OCR Reference No. 10111376

After receiving the teacher and IAs reports, district administrators began investigating
the allegations against the student and placed the student on an emergency expulsion
until a conference could be held with the students parents and staff on May 12, 2011.
The student was kept out of school through May 12, 2011.

As part of the investigation, the student provided another written statement, which says
that on May 9, 2011, he went to sharpen his pencil. He walked back to go to his seat and
the IA was telling him to go around. He did. The student denied that he touched the
mathematics teacher.

During the May 12, 2011, meeting, the principal verbally informed the parents of the
outcome of the investigations concerning the parents March 2011 allegations regarding
the special education teacher. The district also informed the parents of the outcome of
the investigation of the mathematics teacher and IAs allegations regarding the students
alleged inappropriate contact, and told the parents that the students account differed
significantly from the statements of the mathematics teacher and the IA, and that the
other students were facing the front of the room and did not see what happened.
The principal informed the parents that the district felt the teachers and IAs accounts
were credible and that the student would be subjected to discipline for inappropriately
touching the mathematics teacher.

At the May 12, 2011, meeting, the principal also explained that under the districts
progressive discipline policy, the student was facing expulsion. However, because of
his status as a special education student and the number of days he had already been
excluded from school for disciplinary reasons, the student was allowed to return to
school on May 13, 2011, pending the outcome of a manifestation determination meeting.
Although he was allowed to return to school, he was placed in a different class and was
told to stay away from the mathematics teacher.

On May 19, 2011, the district conducted a manifestation determination meeting.

The team reviewed the students disciplinary history and other student records, and
determined that the students alleged behavior with the mathematics teacher was
disability related. A new behavior plan was developed for the student.

OCR determined that the students parents criticized the mathematics teachers handling
of the hallway conversation and questioned district administrators as to why the
comments of the other students were not addressed by the teacher. OCR found that the
parents complaint constitutes a protected activity under Title IX.
Page 19 - OCR Reference No. 10111376

OCR also established that on May 10, 2011, both the mathematics teacher and the IA
filed reports concerning the students in-class behavior on May 9, 2011. However, there
was no evidence that the mathematics teacher or the IA were aware of the complaint
raised by the students parents prior to filing their May 10, 2011, statements.
Accordingly, a prima facia case of retaliation was not established. Furthermore, OCR
determined that the district identified legitimate, non-pretextual reasons for pursuing
the disciplinary action against the student. These include the students prior disciplinary
history, administrators beliefs that the mathematics teachers and IAs reports of the
students behavior were credible, and the seriousness of the allegation.

Therefore, OCR determined that the evidence does not support a finding that the district
intimidated, threatened, coerced, or discriminated against the student for the purpose of
interfering with a right or privilege secured by Title IX and its implementing regulations
in violation of 34 C.F.R. 106.71.

Summary of Resolution Agreement

The district and OCR entered into discussions regarding the compliance concerns
identified by OCR during the investigation. The district signed the enclosed Resolution
Agreement, which, when fully implemented, will remedy the violations of Title IX
identified by OCR. Under this agreement, the district will (1) revise its notice of
nondiscrimination and grievance procedures; (2) provide notice to District staff, students,
and parents regarding the revised notice of nondiscrimination and grievance procedures;
(3) provide training to district staff and students at XXXXXXXXX regarding the revised
notice of nondiscrimination and grievance procedures; (4) ensure that the Title IX
coordinator is appropriately trained; and (5) provide individual remedies to the student.
OCR will monitor the districts implementation of the agreement.

Conclusion

This letter sets forth OCRs determination in an individual OCR case and should not be
interpreted to address the districts compliance with any other regulatory provisions or
to address any issues other than those addressed in this letter. This letter is not a formal
statement of OCR policy and 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.

This concludes OCRs investigation of the complaint. The complainant may have the
right to file a private suit in federal court whether or not OCR finds a violation.
Page 20 - OCR Reference No. 10111376

Please be advised that the district may not harass, coerce, intimidate, or discriminate
against any individual because he or she has filed a complaint or participated in the
complaint resolution process. If this happens, an individual may file a separate complaint
alleging such treatment.

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

OCR appreciates the districts cooperation throughout the investigation and

resolution of this complaint. If you have any questions, please contact me at
(206) 607-1672 or by e-mail at [email protected].

Sincerely,

Kelli Lydon Medak

Supervisory Attorney

Enclosure: Resolution Agreement

cc: Steve Canavero, Superintendent of Public Instruction

Deputy General Counsel