D.  Sexual Harassment

     1.  Overview

             Title IX protects students from sexual harassment in educational programs or activities operated by recipients of federal funding. The protection against sexual harassment derives from the general prohibitions against sex discrimination contained in the Title IX common rule at _.400. Those provisions state in relevant part:

                   (a)General. Except as provided elsewhere in these Title IX regulations, no person shall, on the basis of sex, be excluded from participation in, be subjected to discrimination under any . . . education program or activity operated by a recipient that receives Federal financial assistance.

                   (b) . . . in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex:

            (1) Treat one person differently from another in determining whether such persons satisfies any requirement or condition for provision of such aid, benefit, or service;

            (2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;

            (3) Deny any person any such aid, benefit, or service;

            (4) Subject any person to separate or different rules of behavior, sanctions, or other treatment;

            (6) Aid of perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person that discriminates on the basis of sex in providing any aid, benefit or service to students or employees:

            (7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.

65 F.R. 52870

      Moreover, if a recipient discriminates on the basis of sex, it must take remedial action to overcome the effects of the discrimination. The common rule at _.110(a)provides:

                 (a) Remedial action. If the designated agency official finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial action as the designated agency official deems necessary to overcome the effects of such discrimination.

65 F.R. 52866

         A very comprehensive guidance document concerning sexual harassment in federally funded education programs and activities was issued by the Department of Education, Office for Civil Rights on March 13, 1997. A revised guidance document, with a request for comments, was issued on November 2, 2000. Department of Education’s Proposed Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 65 Feg. Reg. 66092 (2000) (the final Sexual Harassment Guidance is anticipated for a January 2001 publication)("Sexual Harassment Guidance"). The Sexual Harassment Guidance provides educational institutions that receive federal financial assistance from the Department of Education with information regarding the legal standards that should be used in investigating and resolving allegations of sexual harassment of students by school employees, other students, and third parties. The Sexual Harassment Guidance also can provide guidance for entities other than educational institutions that administer education and training programs covered by Title IX. Although some general principles are discussed below, readers should consult the Sexual Harassment Guidance for details on investigating sexual harassment complaints. To the extent that information in this Manual is construed to conflict with the Sexual Harassment Guidance, the Department of Education Sexual Harassment Guidance should be followed.

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Sec. 1681. Sex

        (a) Prohibition against discrimination; exceptions

                 No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except that:

                       (1) Classes of educational institutions subject to prohibition

in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education;

                       (2) Educational institutions commencing planned change in admissions

in regard to admissions to educational institutions, this section shall not apply

                       (A) for one year from June 23, 1972, nor for six years after June 23, 1972, in the case of an educational institution which has begun the process of changing from being an institution which admits only students of one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change which is approved by the Secretary of Education or

                       (B) for seven years from the date an educational institution begins the process of changing from being an institution which admits only students of only one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change which is approved by the Secretary of Education, whichever is the later;

                       (3) Educational institutions of religious organizations with contrary religious tenets

this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization;

                       (4) Educational institutions training individuals for military services or merchant marine

this section shall not apply to an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine;

                       (5) Public educational institutions with traditional and continuing admissions policy

in regard to admissions this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex;

                       (6) Social fraternities or sororities; voluntary youth service organizations

this section shall not apply to membership practices -

                       (A) of a social fraternity or social sorority which is exempt from taxation under section 501(a) of title 26, the active membership of which consists primarily of students in attendance at an institution of higher education, or

                       (B) of the Young Men's Christian Association, Young Women's Christian Association, Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary youth service organizations which are so exempt, the membership of which has traditionally been limited to persons of one sex and principally to persons of less than nineteen years of age;

                       (7) Boy or Girl conferences

this section shall not apply to -

                       (A) any program or activity of the American Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or

                       (B) any program or activity of any secondary school or educational institution specifically for -

                       (i) the promotion of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or

                       (ii) the selection of students to attend any such conference;

                       (8) Father-son or mother-daughter activities at educational institutions

this section shall not preclude father-son or mother-daughter activities at an educational institution, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided for students of the other sex; and

                       (9) Institution of higher education scholarship awards in "beauty" pageants

this section shall not apply with respect to any scholarship or other financial assistance awarded by an institution of higher education to any individual because such individual has received such award in any pageant in which the attainment of such award is based upon a combination of factors related to the personal appearance, poise, and talent of such individual and in which participation is limited to individuals of one sex only, so long as such pageant is in compliance with other nondiscrimination provisions of Federal law.

                       (b) Preferential or disparate treatment because of imbalance in participation or receipt of Federal benefits; statistical evidence of imbalance

Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area: *Provided*, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.

                       (c)"Educational institution" defined

          For purposes of this chapter an educational institution means any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education, except that in the case of an educational institution composed of more than one school, college, or department which are administratively separate units, such term means each such school, college, or department.

(Pub. L. 92-318, title IX, Sec. 901, June 23, 1972, 86 Stat. 373; Pub. L. 93-568, Sec. 3(a), Dec. 31, 1974, 88 Stat. 1862; Pub. L. 94-482, title IV, Sec. 412(a), Oct. 12, 1976, 90 Stat. 2234; Pub. L. 96-88, title III, Sec. 301(a)(1), title V, Sec. 507, Oct. 17, 1979, 93 Stat. 677, 692; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095.)

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