This investigation has been added to our Office for Civil Rights Resolutions Database, along with ten other resolved Title IX investigations added this week for a total of 822.

An OCR complaint filed was filed on July 28, 2020, against Eastern Mennonite University – a private university in Harrisonburg, VA – by the respondent to a Title IX investigation. While we would normally anticipate the complaint would include the claim that the university did not afford sufficient due process to the accused, this complaint was filed several weeks before the due-process friendly DeVos regulations from the Trump administration went into effect on August 14th, 2020. Indeed, in a footnote on the first page of the letter, OCR says, “Amendments to the Title IX regulation went into effect on August 14, 2020…However, OCR is evaluating your complaint based on the prior Title IX regulation that was in effect at the time when the alleged acts occurred.”

When OCR completes an investigation, it typically issues two documents:

• A “resolution letter” explaining the nature of the allegations and OCR’s investigations and findings (if any)
• A “resolution agreement” explaining what the school agreed to.

It’s always best to start with the letter to get a general sense of what’s going on in the investigation. Here are the letter and the agreement for the EMU investigation.

So, what happened here? Essentially, the school did not provide sufficient “interim and supportive measures” to respondents accused of Title IX-related misconduct. OCR provides a brief explanation of such measures in the letter:

It may be appropriate for a school to take interim measures prior to or during the investigation of a complaint. Interim measures are individualized services offered as appropriate to either or both the reporting and responding parties involved in an alleged incident of sexual misconduct. Interim measures include counseling, extensions of time or other course-related adjustments, modifications of work or class schedules, campus escort services, restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar accommodations.

OCR goes on to say:

OCR notes that the Policy did not require the University to offer interim and supportive measures, which the Policy refers to as “accommodations,” to responding parties in a Title IX investigation. Additionally, under Section 8.2.4 of the Policy, University employees could request “working accommodations” only if that employee reported the Title IX violation.

Based on the evidence above, OCR has a concern that the University did not respond to the Complainant’s requests for interim measures in a manner consistent with Title IX.

Parsing the language above, it seems likely that the accused party was a university employee.

The letter is fairly short (four pages), although that is not uncommon. Letters range from two to fifty pages, the latter being rare and the preponderance of letters ranging from five to fifteen pages. Shorter letters are usually a good indicator that the school admitted upfront it could make improvements related to the complaint. Indeed, the letter here states that the school made changes consistent with the complaint in August 2020, a month after the OCR complaint was filed. EMU later signed the resolution agreement on February 18th, 2022.

Here is the relevant section of the resolution agreement:

By May 10, 2022, the University will provide training to senior University administrators, including senior Human Resources staff, responsible for investigating or resolving reports under Title IX, on its obligations under Title IX concerning sexual harassment and retaliation. The training will emphasize (1) the University’s obligations concerning the consideration and provision of supportive measures for the reporting and responding parties to a Title IX complaint, and (2) the prohibitions on retaliation against the parties and participants in a Title IX complaint or investigation.

Reporting Requirement: By May 17, 2022, the University will provide OCR with documentation confirming completion of the required training, including: (a) the name of the individual(s) who conducted the training and their qualifications; (b) the date(s) of the training session(s); (c) all training materials; and (d) a sign-in sheet including a list of the names, signatures, and position titles of the University personnel who participated in each training session.

As occasionally happens, OCR redacted several portions of the letter and agreement. For example, another provision of the agreement states, “By March 10, 2022, the University will develop a plan to assess the appropriateness of the XXXXX, including, if determined to be necessary, consideration of remedial options XXXXX.” Nothing in either the letter or agreement appears to illuminate what the redacted portions might mean.

We will be analyzing and reporting on more OCR investigations in the future. Sign up for our OCR Resolutions Database or join our mailing list below for more.