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all contrary to the directions of the trial judge. As noted, the appellant's case was not that this combination of conduct, in and of itself, involved a miscarriage of justice. Rather, the appellant contended that a miscarriage of justice was to be inferred from the combination of conduct giving rise to a legitimate, non-speculative, concern about the willingness of the jury to obey judicial directions generally.

Because the conduct in the present case did not come to the notice of the trial judge until after the jury delivered its verdicts, no occasion arose for the trial judge to consider discharging juror X (who conducted and informed other members of the jury of his internet research) or the jury as a whole (who did not inform the trial judge about those matters).

The power to discharge juror X or the jury before the entry of a verdict would have involved ss 56 and 60 of the Jury Act. Section 56(1)(a) provides that a judge may, without discharging the whole jury, discharge a juror, after the juror has been sworn, if "it appears to the judge (from the juror's own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial". Section 60(1) provides that if "a jury can not agree on a verdict, or the judge considers there are other proper reasons for discharging the jury without giving a verdict, the judge may discharge the jury without giving a verdict".

If the trial judge had been aware of the conduct before the verdicts were entered, the trial judge would have had a power of discharge under both ss 56(1)(a) and 60(1), the criterion for the exercise of which would have been whether discharge of the juror or the jury as a whole was necessary to maintain the fairness of the trial, having regard to all relevant circumstances, including "the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact". If the trial judge had been called on to decide whether to exercise the power, the trial judge could have questioned juror X and other members of the jury, if appropriate, to assist in deciding if each member remained capable of discharging their function in accordance with their oath or affirmation as a juror to "give a true verdict, according to the evidence, on the issues to be tried, and not to disclose anything about the jury's deliberations except as allowed or required by law". The trial judge also could have assessed whether giving further directions to the jury would

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ameliorate any risk of a reasonable apprehension that the jury might not discharge its function according to law, on the evidence, and in accordance with the directions of the judge.

The respondent acknowledged in argument on the appeal that it was "almost inevitable" that the trial judge would have discharged the whole jury had the conduct come to his attention before verdicts were entered in order to avoid a potential miscarriage of justice. The respondent's acknowledgement led the appellant's senior counsel to ask rhetorically "if it is reasonable at that stage of the trial to infer that this jury … might not comply with judicial directions, then why is it unreasonable to infer now that we know that [the jury] did not comply with those directions?". The answer is that to reason in that way would conflate two separate questions, the first of which is now hypothetical and the second of which is the one to be answered.

The first question is: the evidence of the conduct remaining as it is, but the verdicts not yet having been entered, would the trial judge have discharged the jury? Answering this first, hypothetical, question would have involved making a prospective – that is, forward-looking – assessment of the risk of the occurrence of a miscarriage of justice by reason of the reasonable apprehension test. In the case of juror misconduct, the reasonable apprehension test, that a fair-minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function as required, must be applied to the facts as then known and with due recognition of the difficulty of a trial judge in eliciting all relevant evidence from questioning of the juror or jury. A proper exercise of power in such a prospective assessment would generally result in discharge of the jury if, by reason of the nature and extent of the misconduct, there was any real risk of a miscarriage of justice occurring (that is, any risk of satisfaction of the "double might" test for the requisite reasonable apprehension) that could not be ameliorated by further directions. The focus would be whether, despite any further direction, it was appropriate to discharge the jury or a juror because otherwise the trial realistically might miscarry.

The second question is: the verdicts having been entered, and forming part of the available material, and all directions having been given, has a miscarriage

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of justice in fact occurred? This is the question now to be answered. It cannot be answered by a prospective, forward-looking, assessment of the risk that the trial realistically might miscarry. It is to be answered by a retrospective assessment of whether conduct found to have occurred in fact and on the balance of probabilities means that a fair-minded and informed member of the public might reasonably apprehend that the jury (or juror) might not have discharged its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. This retrospective assessment must take into account all relevant facts as found on the balance of probabilities (if not subject to the common law exclusionary rule), including as to the nature and extent of the misconduct and any findings and warnings by the trial judge. Indeed, in applying the reasonable apprehension test following the "public ventilation" of an irregularity during the course of the trial it has been said that the fair-minded and informed member of the public "would give considerable weight" to a trial judge's warning about the matter and conclusions and findings.

There should be no quibbling about the terms of the trial judge's directions in this case. Taken as a whole, they were clear – the jury was directed not to look up anything about the case on the internet and that if any jury member told another juror that they had done so, that juror should inform the trial judge via the bailiff.

For the conduct of juror X (in conducting and informing the jury of his internet research) and of the jury as a whole (in not informing the trial judge about that conduct of juror X) to satisfy the reasonable apprehension test, however, more would be required than the undoubted fact that the conduct contravened directions of the trial judge. As Martin CJ noted in Mathews v Western Australia, apart from the dissenting judgment of Pullin JA in Hansen v Western Australia, it is not apparent that any case decides that mere disobedience by a jury or juror of a trial judge's directions, in and of itself, is sufficient to give rise to a miscarriage of justice. The cases in which juror misconduct has resulted in the setting aside of the verdict have included consideration of the potential effect of the misconduct on the jury's discharge of its function, with the most important considerations being the nature of the inquiries made and/or of the information obtained by the jury or juror. These considerations also inform the assessment of the possible reasonable apprehension of the fair-minded and informed member of the public as to whether the jury (or juror) (after conviction) might not have discharged or (before conviction) might not discharge its function of deciding an accused's guilt

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 which has recognized them as the only true ones, and which asserts their truth by saying that the church has accepted them as such, must tell us what the church itself is that has established these dogmas. But the Theology does nothing of the kind: on the contrary, it gives to the church the meaning of a union of angels and men, both living and dead, and the union of all believers in Christ, from which can result neither sanctification, nor the establishment of dogmas. The Theology in this case acts as would act a man, who, trying to assert his right to a legacy, instead of announcing first of all those grounds on which he bases his rights, should speak of the legality in general and of the right of inheritance, should prove the falseness of the pretensions of all the others, and should even explain his own management of the debatable property, but should not say a word about that on which his rights are based. That is precisely what the Theology does in all this division about the teaching of the church. It speaks of the foundation of the church by Christ, of the heretical teachings which do not agree with the church, of the activity of the church, but not a word is said as to what is to be understood by the true church, and the definition of the church as such which corresponds with its activity—the sanctification of men and the establishment of dogmas—is given only at the end, and here again not in the form of a definition, but in the form of a description and subdivision. And thus, without giving a definition of the church which would correspond to reality, the Theology says:

“In order that this exposition may be as detailed as possible, we shall view the church: (1) from the more external side, namely, from the side of its origin, dissemination, and purpose; (2) from a more internal side (‘more’—for it is impossible entirely to separate the internal from the external side of the church), and we shall speak of the composition and internal structure of the church; (3) finally,


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130 accorded knowledge to his creatures are thought too easy; and new and hitherto unheard-of conditions are to be imposed, of such a nature as must effectually prevent the monopoly of learning, hitherto maintained in the East, from being broken in upon by the rapid diffusion of English education.

Another argument used by the Oriental party is, that little real progress can be made until the learned classes in India are enlisted in the cause of diffusing sound knowledge, and that “one able Pundit or Maulavee, who should add English to Sanskrit or Arabic, who should be led to expose the absurdities and errors of his own systems, and advocate the adoption of European knowledge and principles, would work a greater revolution in the minds of his unlettered countrymen than would result from their proficiency in English alone.”


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Rh But if it be really true that the cultivation of the ancient classical languages is necessary to qualify the popular dialects for the reception of European knowledge, the progress of this salutary change must be arrested in the midst; the intellect of the country must be rechained to the heavy burden which has, for so many ages, prevented it from standing upright; and a pursuit which absorbs the time of the literary class, to the exclusion of those studies which can alone enable them to regenerate their country, must be indefinitely persevered in. It is true that neither the law, nor the administration of it, nor the established system of public instruction, any longer require this enormous sacrifice. But the philological system lately propounded by the advocates of Oriental education does require it. Such is the expense at which this theory is to be maintained. If crores, instead of lacs of rupees, had been spent in founding Sanskrit colleges and printing Sanskrit books, it would have been as nothing compared with this. The mental and moral energies of India are to be kept for ages in a state of worse than Egyptian bondage, in order that the vernacular dialects may be improved from congenial, instead of from uncongenial, sources. The ordinary terms on which the God of wisdom has


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 as a consequence from everything which has been said, we shall give an exact idea about the essence itself of the church and of its essential properties.” (p. 191.)

167. Here the Theology speaks of the establishment of the church by our Lord Jesus Christ. It is proved that the church, according to the definition of the Theology,—as men who believe in Christ,—was established by Jesus Christ. In this article it is proved that Jesus Christ wished that men, having accepted the new faith, should not maintain it separated from each other, but should form for this purpose a separate religious society.

“The desire to form one society out of his followers, the Saviour has frequently expressed, for example, (a) after the Apostle Peter, in the name of all the apostles, professed him as the Son of God: Upon this rock, that is, on this confession, our Lord then said to us, will I build. my church, and the gates of hell shall not prevail against it (Matt. xvi. 18); (b) in the parable of the good shepherd, in these words: I am the good shepherd, and know my sheep, and am known of mine. And other sheep I have, which are not of this fold: them also I must bring, and they shall hear my voice; and there shall be one fold, and one shepherd (John x. 14, 16); (c) in the prayer to the Heavenly Father: That they all may be one; as thou, Father, art in me, and I in thee, that they also may be one in us (John xvii. 20, 21). With the idea of founding his kingdom of grace upon earth he began his first. sermon to men, as the Evangelist Matthew tells us: From that time Jesus began to preach, and to say, Repent: for the kingdom of heaven is at hand (Matt. iv. 17). With the same sermon the Lord sent his disciples out among the Jews: Go, he said to them, to the lost sheep of the house of Israel. And as ye go, preach, saying, The kingdom of heaven is at hand (Matt. x. 6-8). And how often he spoke to men about this kingdom of God, both in parables


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according to law, on the evidence, and in accordance with the directions of the judge.

The appellant's case of undisputed misconduct giving rise to a legitimate concern or apprehension of subsequent further misconduct in not applying the trial judge's directions depended on the appellant's contention that the conduct of juror X (in undertaking the internet research and informing the other members of the jury about it) and the other members of the jury (in not reporting juror X's conduct to the trial judge) was done in knowing and intentional disobedience of the trial judge's directions. The difficulty with this argument of the appellant is that a finding (on the balance of probabilities) of such wilful disobedience is not open for juror X, let alone the other members of the jury.

It will be recalled that the directions were given orally on Tuesday, 13 October 2020. Openings, evidence, legal discussions in the absence of the jury, closings, and the summing up then occurred up to the lunch adjournment of Friday, 16 October 2020. Juror X did the internet research over the weekend of 17 and 18 October 2020. The internet research did not concern the appellant or any witness. It concerned the definitions of and differences in sentencing between rape and unlawful carnal knowledge generally.

Juror X's conduct might have been in wilful disobedience of the trial judge's directions. Equally plausible, however, is that juror X did not appreciate that internet research – not about the appellant, any witness, or the particular case or the charges, but about the definitions of and sentences for rape as compared to unlawful carnal knowledge – was contrary to the trial judge's directions.

As to the state of mind of the other members of the jury, it is relevant that nothing in the Sheriff's report suggests that when juror X told the other jurors about his internet research on Monday, 19 October 2020, any of them took the view that the conduct of juror X needed to be reported in order not themselves to have been in contravention of the trial judge's directions.

Juror A said in his note to the trial judge on 21 October 2020 that juror X's "external actions" (meaning, we infer, the internet research) caused him "concern" and said in response to the Sheriff some months later that juror X's internet research had been in "blatant disregard" of the trial judge's directions. It could not be inferred that juror A was other than conscientious and intent on complying with his obligations as a juror. Juror A apparently considered that juror X had disobeyed the trial judge's directions but also apparently did not consider that juror X's disobedience of the trial judge's directions required juror A immediately to notify the trial judge about juror X's conduct if juror A was not himself to contravene the trial judge's directions. Juror A's note to the trial judge and response to the Sheriff contained strong criticism of juror X. They contained no hint of confession or

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 which nothing has as yet been said. It says that Christ appointed teachers for the dissemination of his faith among the nations, although the idea of the teaching church does not enter into the definition of the church as being a union of believers. Still less do the sacraments enter into that definition: both define the church of the chosen among the believers. But let us suppose that the Theology is not sticking closely to its definition, that it expounds the teaching about that exclusive church which has the power to teach and impart the mysteries. Let us see what it is based upon. It says that Christ himself established the church with its teachers and with the sacraments of the baptism, eucharist, and repentance, and the texts are referred to, but not quoted. Here are the texts:

“And now come I to thee; and these things I speak in the world, that they might have my joy fulfilled in themselves (John xvii. 13).” This is adduced as a proof that Christ established the one society, the church. It is evident that the text has nothing in common with the establishment of the church.

“And he gave some, apostles; and some, prophets; and some, evangelists; and some, pastors and teachers; for the perfecting of the saints, for the work of the ministry, for the edifying of the body of Christ (Eph. iv. 11-12).” These words of Paul, who did not even know Christ, are ascribed to Christ. The other texts have been quoted, but striking is the text which proves that Christ established the sacrament of repentance:

“And Jesus came and spake unto them, saying, All power is given unto me in heaven and in earth (Matt. xxviii. 18).”

On this passage the Theology bases the establishment of the sacraments by Christ, without considering that all that is said here is that (according to an incorrect interpretation of the Theology, which will be examined later)


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 recognition of misconduct on his own part or on the part of any other juror, let alone wilful disobedience of the trial judge's directions.

The evidence, such as it is, about juror B's response to juror X's disclosure on Monday, 19 October 2020, is equally telling. Juror B, like juror A, is the kind of person who was willing to answer the Sheriff's letter months after the events in question. It could not be doubted that juror B was conscientious in respect of complying with legal obligations. None of this supports an inference that juror B was engaged in wilful disobedience of the trial judge's directions. The proper inference is that juror B genuinely believed that his intervention (by telling the members of the jury that the decision could not be based on what they thought the sentence might be) had resolved the matter, making its occurrence "inconsequential".

As noted, the letters in response to the Sheriff's letter from jurors C and D do not refer to the internet research or subsequent discussions about it among the jury members. Nothing of relevance can be drawn from those responses. Juror E's response focused on juror X's announcement at the outset that he would not convict. The report records that juror E said there were "no issues after that". Accordingly, nothing can be drawn from juror E's response. Otherwise, the jurors did not respond to the Sheriff's letter. Again, silence is neutral.

The facts to be found on the balance of probabilities, extrinsic to the jury's actual deliberations about the verdicts to be reached, are that: (a) juror X did internet research about the definitions of and sentences for rape and unlawful carnal knowledge and told the other jury members about it; (b) at least some members of the jury discussed it and decided that juror X's view that sentences for unlawful carnal knowledge were lighter than for rape was not correct; (c) juror B told the jury as a whole "very explicitly '[i]t's not appropriate for you to base your decision on what you think the sentence will be – you can't do that'"; (d) juror B believed the issue was resolved on that basis and therefore was inconsequential; (e) before the verdicts were delivered, juror A did not consider that he had to or should inform the trial judge of any aspect of juror X's conduct; and (f) however, juror A remained concerned by juror X's conduct as a whole, prompting him to deliver the note to the trial judge the day after the verdicts were given.

No finding of fact on the balance of probabilities can be made that the conduct of any juror was in wilful disobedience of the trial judge's directions. In particular, it cannot be found on the balance of probabilities either that juror X acted in wilful disobedience of the trial judge's directions or that any other member of the jury acted in wilful disobedience of the trial judge's directions.

For these reasons, to the extent that the appellant's argument rested on the misconduct being in wilful disobedience of the trial judge's directions, no positive

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inference of wilfulness can be drawn. In the process of fact-finding required before the application of the reasonable apprehension test, it cannot be reasoned that there is a reasonable apprehension that juror X was wilfully disobedient; added to a reasonable apprehension that the other jurors were wilfully disobedient; added to a reasonable apprehension that this jury was unwilling to follow the trial judge's directions in some other respect, leading to a reasonable apprehension that juror X and other members of the jury were not faithful to their sworn function of rendering a true verdict according to law, on the evidence, and in accordance with the directions of the judge.

This is not to suggest juror X and other members of the jury did not contravene the trial judge's directions. They did. Juror X should not have conducted the internet research. When juror X disclosed he had conducted the internet research, the other members of the jury, to the extent they did discuss the substance of the research, should not have done so. Instead, they should have informed the trial judge in accordance with the trial judge's directions. Therefore, the jury's conduct is properly described as misconduct and irregular.

Once the element of wilfulness is put to one side, what is left is the facts of disobedience of the trial judge's directions. What other inference can be drawn from those facts on the balance of probabilities? The direction the trial judge gave to the jury on Friday, 16 October 2020, before the jury started its deliberations to the effect that it should "ensure that no external inference" played a part in its deliberations should not be overlooked. The conduct which occurred in the jury room on Monday, 19 October 2020, provides no foundation for inferring that the jury, and even ultimately juror X, did not comply with that direction. The more likely explanation for the jury's failure then to report the conduct of juror X to the trial judge is that the jury failed fully to appreciate the true import of the trial judge's earlier directions about internet research extending to the definition of the offences or sentencing unconnected to the facts of the immediate case.

What follows, as a matter of inferential reasoning, is that the jury's failure fully to appreciate the true import of the trial judge's directions about internet research enabled the jury to discuss the sentencing issue without realising that doing so also contravened the trial judge's directions and to not report juror X's internet research to the trial judge, again without realising that doing so also contravened the trial judge's directions.

What does not follow, as a matter of inferential reasoning, is that juror X or other members of the jury failed to understand or failed to apply, still less were unwilling to apply, the trial judge's other directions. Failure of a jury or juror to fully appreciate and therefore apply a procedural direction about what is to occur in the course of a hearing does not, without more, provide a foundation for a positive feeling of actual apprehension or mistrust on the part of a fair-minded and

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128 prising copiousness, the complicated mechanism of the Sanskrit and Arabic languages were spoken of as if languages were an end to be attained, instead of a means for attaining an end, and were deserving of being studied by all sorts of people without any reference to the amount or kind of knowledge which they contain. All the concurrent systems were liberally patronised by the government, and the praises and emoluments lavished on great Arabic and Sanskrit scholars, were shared by natives as well as Europeans.

By degrees, however, a more wholesome state of things began to prevail. The government ceased to give indiscriminate support to every literary system, without reference to its real merits. Persian is ceasing to be the language of business. The study of Arabic and Sanskrit will soon be rendered superfluous by the inestimable boon which is being prepared for the people, of a complete body of law in their own language. By these changes an incalculable saving of human labour will be effected. The best literary, scientific, and professional education will be obtained at the expense of learning a single foreign language: and the years which were before painfully spent in breaking the shell of knowledge, will be employed in devouring the kernel.


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informed member of the public that the jury or juror might have failed fully to appreciate and therefore apply a substantive direction about how a verdict is to be rendered. On this basis, the assumption, which is "fundamental to the criminal jury trial", that jurors understand and conform to a trial judge's directions continues to apply to the jurors in the present case other than in the proven respect of the identified misconduct.

The verdicts provide no more information other than that they belie juror X's initial and subsequent assertions that he would not convict the appellant of any offence. The jury acquitted the appellant of all charges relating to E and acquitted or could not reach a verdict in respect of all charges that the appellant raped K. Count 1, for example, discloses that the jury convicted the appellant of maintaining a relationship of a sexual nature with K, a child under 16 years, between 31 December 1989 and 19 September 1999, but could not reach a verdict on count 1 to the extent it charged that the appellant raped K during this sexual relationship. Count 17, for example, discloses that the jury convicted the appellant of unlawful carnal knowledge of K, between 18 September 1997 and 20 September 1999, but could not reach a verdict on count 17 to the extent it charged that the appellant raped K during this period. Count 18, for example, discloses that the jury acquitted the appellant of rape of K and unlawful carnal knowledge of K, between 31 December 1998 and 1 January 2000.

The reasons nothing can be drawn from this are as follows.

First, apart from the fact the jury acquitted the appellant or could not reach a verdict in respect of all rape charges against K, there is no consistent pattern as the jury both convicted and acquitted the appellant of charges of unlawful carnal knowledge of K relating to different periods of time.

Second, the issue of consent, being the essential difference between rape and unlawful carnal knowledge, was not the subject of cross-examination of K but was the subject of the Crown prosecutor's submissions and of directions by the trial judge. K's credibility was also in issue, it being part of the appellant's case that she had a motive to lie about the appellant. In the Crown's opening, the Crown prosecutor told the jury that, for rape, the jury had to be satisfied that penetration was without consent. In his summing up, the trial judge returned to consent being an essential element of rape, saying both that it was the appellant's case that

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Rh The Mahommedan legal system was locked up in Arabic; the Hindu in Sanskrit; Persian was the language of official proceedings; English that of liberal education and of a great part of our judicial and revenue system all of these being independent of the common colloquial languages. If, therefore, a person learned only one foreign or dead language, it was impossible for him to qualify himself to take an efficient part in public business. If he learned several, his best years were wasted in the unprofitable task of studying grammar and committing vocabularies to memory. Persons were considered learned in proportion to the number of languages they knew; and men, empty of true knowledge and genius, acquired great reputations, merely because they were full of words. As great a waste of human time and labour took place in India under this state of things, as is caused in China by their peculiar system of writing. In one country, life was exhausted in learning the signs of words, and in the other in learning words themselves.

At first we gave decided encouragement to this false direction of the national taste. Our own attention was turned the same way. Oriental philology had taken the place of almost every other pursuit among our Indian literary men. The sur-


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126 greater part of Europe were melted down into one people by the prevalence of the Roman language and arts. All that is required is, that we should not laboriously interpose an obstacle to the progress of this desirable change by the forced cultivation of the Sanskrit and Arabic languages.

The argument we have been considering is the last hold of the oriental party. Forced to admit that Sanskrit and Arabic are not worth teaching for the knowledge they contain, they would obtain a reprieve for them on the ground that their vocabularies are required to patch up the vernacular dialects for the reception of Western knowledge. Discarded as masters, they are to be retained as servants to another and a better system. Their spirit has fled, but their carcase must be preserved to supply the supposed deficiencies, and to impair the real energies, of the system which is growing up in their place.

But, specious as the argument is, I should not have dwelt on it so long, if it had not been closely connected with a most pernicious error. The time of the people of India has hitherto been wasted in learning languages as distinguished from knowledge—mere words as distinguished from things—to an extent almost inconceivable to Europeans. This has been in a great measure unavoidable.


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Page 9 — Dear Colleague Letter: Sexual Violence :

As stated in the 2001 Guidance, OCR has identified a number of elements in evaluating whether a school's grievance procedures provide for prompt and equitable resolution of sexual harassment complaints. These elements also apply to sexual violence complaints because, as explained above, sexual violence is a form of sexual harassment. OCR will review all aspects of a school's grievance procedures, including the following elements that are critical to achieve compliance with Title IX:
 * Notice to students, parents of elementary and secondary students, and employees of the grievance procedures, including where complaints may be filed;
 * Application of the procedures to complaints alleging harassment carried out by employees, other students, or third parties;
 * Adequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence;
 * Designated and reasonably prompt time frames for the major stages of the complaint process;
 * Notice to parties of the outcome of the complaint; and
 * 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.

As noted in the 2001 Guidance, procedures adopted by schools will vary in detail, specificity, and components, reflecting differences in the age of students, school sizes and administrative structures, State or local legal requirements, and past experiences. Although OCR examines whether all applicable elements are addressed when investigating sexual harassment complaints, this letter focuses on those elements where our work indicates that more clarification and explanation are needed, including:

 * (A)

The procedures for resolving complaints of sex discrimination, including sexual harassment, should be written in language appropriate to the age of the school's students, easily understood, easily located, and widely distributed. OCR recommends that the grievance procedures be prominently posted on school Web sites; sent electronically to all members of the school community; available at various locations throughout the school or campus; and summarized in or attached to major publications issued by the school, such as handbooks, codes of conduct, and catalogs for students, parents of elementary and secondary students, faculty, and staff.

 * (B)

OCR's work indicates that a number of issues related to an adequate, reliable, and impartial investigation arise in sexual harassment and violence complaints. In some cases, the conduct


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Page 10 — Dear Colleague Letter: Sexual Violence may constitute both sexual harassment under Title IX and criminal activity. Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.

A school should notify a complainant of the right to file a criminal complaint, and should not dissuade a victim from doing so either during or after the school's internal Title IX investigation. For instance, if a complainant wants to file a police report, the school should not tell the complainant that it is working toward a solution and instruct, or ask, the complainant to wait to file the report.

Schools should not wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation and, if needed, must take immediate steps to protect the student in the educational setting. For example, a school should not delay conducting its own investigation or taking steps to protect the complainant because it wants to see whether the alleged perpetrator will be found guilty of a crime. Any agreement or Memorandum of Understanding (MOU) with a local police department must allow the school to meet its Title IX obligation to resolve complaints promptly and equitably. Although a school may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence, once notified that the police department has completed its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges), the school must promptly resume and complete its fact-finding for the Title IX investigation. Moreover, nothing in an MOU or the criminal investigation itself should prevent a school from notifying complainants of their Title IX rights and the school's grievance procedures, or from taking interim steps to ensure the safety and well-being of the complainant and the school community while the law enforcement agency's fact-gathering is in progress. OCR also recommends that a school's MOU include clear policies on when a school will refer a matter to local law enforcement.

As noted above, the Title IX regulation requires schools to provide equitable grievance procedures. As part of these procedures, schools generally conduct investigations and hearings to determine whether sexual harassment or violence occurred. In addressing complaints filed with OCR under Title IX, OCR reviews a school's procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints. The Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. Like Title IX,


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 Christ transfers his power to the apostles. But it does not say wherein this power is to consist. Consequently any false teaching may with equal right be based upon these words. But, having picked out these quasi-confirmatory texts, the Theology in the end corrects itself and admits that in the time of Christ there did not yet exist a church with sacraments and teachers. In these discussions the Theology already prepares the reader for that substitution for the conception of the church as a union of all believers of the conception of a teaching and sacramental church.

In the following discussion the church is mentioned no longer in the sense in which it was mentioned before, as being a union of all believers, but as an exclusive church, separate in its structure and in its rights from all the other believers.

“(3) Having received power from above (Luke xxiv. 45), the holy apostles, after receiving the divine message, went forth, and preached everywhere, the Lord working with them, and confirming the word with signs following (Mark xvi. 20), and (a) from the believers in various places tried to form societies which they called churches (1 Cor. i. 2; xvi. 19); (b) enjoined these believers to have gatherings in which to hear the word of God and send up prayers in common (Acts ii. 42, 46; xx. 7); (c) exhorted them to keep the unity of the spirit in the bond of peace, presenting to them that they formed one body of the Lord Jesus, of whom they were but members in particular, and had one Lord, one faith, one baptism (Eph. iv. 3, 4; 1 Cor. xii. 27), and were all partakers of the one bread (1 Cor. x. 17), that is, had everything for their internal as well as their external union; (d) finally, they were commanded not to forsake their assemblings, under the penalty of expulsion from the church and eternal perdition (Heb. x. 24, 25). Thus, with the will and coöperation of the Saviour, who himself immediately put


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Page 11 — Dear Colleague Letter: Sexual Violence Title VII prohibits discrimination on the basis of sex. OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients. For instance, OCR's Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX. OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings. Thus, in order for a school's grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The "clear and convincing" standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

Throughout a school's Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence. The complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing. For example, a school should not conduct a pre-hearing meeting during which only the alleged perpetrator is present and given an opportunity to present his or her side of the story, unless a similar meeting takes place with the complainant; a hearing officer or disciplinary board should not allow only the alleged perpetrator to present character witnesses at a hearing; and a school should not allow the alleged perpetrator to review the complainant's


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Page 12 — Dear Colleague Letter: Sexual Violence statement without also allowing the complainant to review the alleged perpetrator's statement.

While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties. Additionally, any school-imposed restrictions on the ability of lawyers to speak or otherwise participate in the proceedings should apply equally. OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment. OCR also recommends that schools provide an appeals process. If a school provides for appeal of the findings or remedy, it must do so for both parties. Schools must maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings.

All persons involved in implementing a recipient's grievance procedures (e.g., Title IX coordinators, investigators, and adjudicators) must have training or experience in handling complaints of sexual harassment and sexual violence, and in the recipient's grievance procedures. The training also should include applicable confidentiality requirements. In sexual violence cases, the fact-finder and decision-maker also should have adequate training or knowledge regarding sexual violence. Additionally, a school's investigation and hearing processes cannot be equitable unless they are impartial. Therefore, any real or perceived conflicts of interest between the fact-finder or decision-maker and the parties should be disclosed.

Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.

 * (C)

OCR will evaluate whether a school's grievance procedures specify the time frames for all major stages of the procedures, as well as the process for extending timelines. Grievance procedures should specify the time frame within which: (1) the school will conduct a full investigation of the complaint; (2) both parties receive a response regarding the outcome of the complaint; and (3) the parties may file an appeal, if applicable. Both parties should be given periodic status updates. Based on OCR experience, a typical investigation takes approximately 60 calendar days following receipt of the complaint. Whether OCR considers complaint resolutions to be timely, however, will vary depending on the complexity of the investigation and the severity and extent of the harassment. For example, the resolution of a complaint involving multiple incidents with multiple complainants likely would take longer than one involving a single incident that


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50 quantities of meat without any ill effects. They were careless of the future, and were happy if the wants of the moment were supplied. Thus, when a large animal was killed, no trouble was taken to preserve a portion of its flesh, but the time was spent in alternate gorging, sleeping, and dancing, until not a particle of carrion was left. When a drove of domestic cattle was stolen, several were slaughtered at once and their carcases shared with birds of prey, while if their recapture was considered possible, every animal was hamstrung or killed.

Such wanton destruction, more than any other circumstance, caused the wild people to be detested by the Hottentots and the Bantu, as well as by the European colonists at a later date. From their point of view, however, they regarded any injury they could inflict upon members of other races as justifiable. Those races were intruders into the land that had been solely possessed by their ancestors from the earliest times, the game, which was their cattle, was killed without scruple by the invaders of their domains, their fountains and streams were appropriated without their consent, only the deserts were left to them; why then should they not retaliate, and do as much harm as they possibly could to those who had done such grievous wrong to them?

In some parts of the country the Bushmen made long walls by piling up stones, for the purpose of capturing game. These walls were constructed in the form of the sides of an isosceles triangle, with a narrow open space at the apex. Just beyond this was a deep pit carefully covered over, into which the animals that were driven forward fell without chance of escape. The construction of these walls required much labour, but the hunters were not deficient in energy when the capture of game was the end in view, and the embankments were probably only gradually lengthened and increased in height as the utility of the device became more apparent. They made pits for entrapping the elephant and the hippopotamus at the approaches to rivers, and poisoned pools of water, so that any animal which drank perished, Those who lived in the vicinity of streams containing fish used long baskets shaped like scoop nets made of reeds for the purpose


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Rh of capturing the smaller kinds, and speared the huge barbels and yellow fish with harpoons of bone.

Honey was obtained in many localities in large quantities. The bees frequently make their hives in crevices in the faces of precipices, but it was a very lofty precipice that a Bushman would not scale or be lowered down from above to secure the spoil. A peg driven into a crack in the rock or any little projecting ledge gave him a foothold, and no baboon would venture where he feared to go. The comb was used for food, but most of the honey was fermented and consumed as an intoxicant. The Bushmen were inveterate smokers of dacha or wild hemp, a plant widely distributed in South Africa, and which possesses great intoxicating properties.

Their principal weapons were bows and arrows, but when hard pressed by an enemy and in the chase they used anything that came to hand, stones for throwing, sticks, darts, stone-headed spears, or anything else that could be improvised. The bows were nothing more than pieces of saplings or branches of trees scraped down a little and strung with a cord formed by twisting together the sinews of animals. It was thus almost useless in wet weather, as the cord when damp was liable to relax, so at such times the Bushmen never went abroad. The arrows were made of reeds, pointed generally with bone, but sometimes with chipped stone flakes. The arrowhead and the lashing by which it was secured to the reed were coated with a deadly poison, so that the slightest wound caused death. The arrows were carried in a quiver usually made of the bark of a species of euphorbia, which is still called by Europeans in South Africa the kokerboom or quiver tree. They were formidable chiefly on account of the poison, as they could not be projected with accuracy to a distance of over fifty metres, and from their frailty had in general little penetrating power. The most expert Bushmen were able to discharge arrows in very rapid succession and at short distances with a fairly accurate aim.

They—or at least some of them—were acquainted with antidotes to the poisons which they used, but were very careful not to inflict wounds upon themselves or even to allow the deadly


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Rh class was established in the upper provinces, a few old fashioned English spelling books were with difficulty procured from the neighbouring stations. Nine years hence it is probable that an English education will be every where more cheaply and easily obtained than an Arabic or Sanskrit one. It is an error to anticipate the march of events, but it is not less so to neglect to watch their progress, and to be perpetually judging the existing state of things by a standard which is applicable only to past times. “This, too, will acquire the authority of time; and what we now defend by precedents will itself be reckoned among precedents.”

Native children seem to have their faculties developed sooner, and to be quicker and more self-possessed than English children. Even when the language of instruction is English, the English have no advantage over their native class-fellows. As far as capability of acquiring knowledge is concerned, the native mind leaves nothing to be desired. The faculty of learning languages is particularly powerful in it. It is unusual to find, even in the literary circles of the Continent, foreigners who can express themselves in English with so much fluency and correctness as we find in hundreds of the rising generation of Hindus.


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52 substance to come in contact with any part of their bodies. The poisons were obtained from snakes, some kinds of caterpillars, and different shrubs.

With the flora in his neighbourhood the Bushman was much better acquainted than Europeans who are not botanists in general are. He knew the qualities of every plant, could at once select those that were edible and reject those that were noxious, and could even make use of those with medicinal properties in case of illness. In this branch of knowledge he had been educated by his mother, when as a little child he went with her daily to seek for food.

The Bushmen used stone flakes for various purposes, but took no trouble to polish them or give them a neat appearance. Many implements were commonly made of horn or bone. There was a stone implement, however, upon which a large amount of care and labour was bestowed in general use among these people when Europeans first became acquainted with them, though it was unknown in very remote times. It was a little spherical boulder, from nine to fourteen centimetres or 3½ to 5½ inches in diameter, such as may be picked up in abundance in many parts of the country, through the centre of which the Bushman drilled a hole large enough to receive a digging-stick, to which it gave weight. With the tools at his disposal, this must have required much time and patience, so that in his eyes a stone when drilled undoubtedly had a very high value. On it he depended for food in seasons of drought, when all the game had fled from his part of the country. Drilled stones of smaller size have occasionally been found in places once the favourite abodes of Bushmen, but from which those savages have long since disappeared. None not large enough to give weight to a digging-stick have been seen in use by any European who has put his observations on record, but from Bushman paintings it is known that moderately sized ones were employed as heads of fighting sticks, and it is conjectured that the very small ones were intended as amulets.

It is not safe, however, for a European to make any surmise regarding the use of a stone implement which he has never seen used, because he cannot analyse the working of the mind of


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112 Readiness in acquiring languages, which exists in such a strong degree in children, seems to exist also in nations which are still rising to manhood. No people speak foreign languages like the Russians and Hindus. Such nations are going through a course of imitation, and those qualities of mind upon which their success depends seem to be proportionately developed.

When we go beyond this point to the higher and more original powers of the mind, judgment, reflection, and invention, it is not so easy to pronounce an opinion. It has been said, that native youth fall behind at the age at which these faculties begin most to develope themselves in Englishmen. But this is the age when the young Englishman generally commences another and far more valuable education, consisting in the preparation for, and practice of some profession requiring severe application of mind; when he has the highest honours and emoluments opened to his view as the reward of his exertions, and when he begins to profit by his daily intercourse with a cultivated intellectual, and moral society. Instead of this, the native youth falls back on the ignorant and depraved mass of his countrymen; and, till lately, so far from being stimulated to further efforts, he was obliged to ask himself for


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Rh what end he had hitherto laboured. Every avenue to distinction was shut against him; and his acquirements served only to manifest the full extent of his degraded position. The best test of what they can do, is what they have done. Their ponderous and elaborate grammatical systems, their wonderfully subtle metaphysical disquisitions, show them to have a German perseverance and Greek acuteness; and they certainly have not failed in poetical composition. What may we not expect from these powers of mind, invigorated by the cultivation of true science, and directed towards worthy objects! The English, like the Hindus, once wasted their strength on the recondite parts of school learning. All that we can say with certainty is, that the Hindus are excellent students, and have learned well up to the point to which their instructors have as yet conducted them. A new career is now opened to them : the stores of European knowledge have been placed at their disposal: a cultivated society of their own is growing up: their activity is stimulated by the prospect of honourable and lucrative employment. It will be seen what the next fifty years will bring forth.

To return to the point from which I have digressed; it is true, that a smattering of English formerly prevailed to a considerable extent, without


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house was haunted, long before evening. Shadows slipped down the walls and waited behind every chair.

Did that door move?

No. She wouldn't go to the Jolly Seventeen. She hadn't energy enough to caper before them, to smile blandly at Juanita's rudeness. Not today. But she did want a party. Now! If some one would come in this afternoon, some one who liked her—Vida or Mrs. Sam Clark or old Mrs. Champ Perry or gentle Mrs. Dr. Westlake. Or Guy Pollock! She'd telephone

No. That wouldn't be it. They must come of themselves.

Perhaps they would.

Why not?

She'd have tea ready, anyway. If they came-splendid. If not—what did she care? She wasn't going to yield to the village and let down; she was going to keep up a belief in the rite of tea, to which she had always looked forward as the symbol of a leisurely fine existence. And it would be just as much fun, even if it was so babyish, to have tea by herself and pretend that she was entertaining clever men. It would!

She turned the shining thought into action. She bustled to the kitchen, stoked the wood-range, sang Schumann while she boiled the kettle, warmed up raisin cookies on a newspaper spread on the rack in the oven. She scampered up-stairs to bring down her filmiest tea-cloth. She arranged a silver tray. She proudly carried it into the living-room and set it on the long cherrywood table, pushing aside a hoop of embroidery, a volume of Conrad from the library, copies of the Saturday Evening Post, the Literary Digest, and Kennicott's National Geographic Magazine.

She moved the tray back and forth and regarded the effect. She shook her head. She busily unfolded the sewing-table, set it in the bay-window, patted the tea-cloth to smoothness,

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Rh a savage. Flat circular stones with a hole drilled through the centre have been found in different parts of the country, but until quite recently no one could conceive any use that could be made of them. They were not adapted for digging-sticks, as they were not more than three or four centimetres in thickness, and the surface was too large for such a purpose. What could they have been designed for?

Not long ago a farmer was digging a pit in his ground near Kimberley, and at some depth below the surface he came across some ostrich eggshells. Still deeper he found a flat stone firmly fixed on the surface of a stratum of rock or very hard ground, and on examination the stone was seen to have a hole in it, which was carefully plugged. When the plug was removed, a little stream of water flowed out, which explained the whole matter. The Bushmen who occupied that part of the country until the beginning of the nineteenth century had desired to conceal the water, in order either to preserve it for themselves alone, or to compel the game to resort to poisoned pools, and therefore had closed the eye of the spring in such a manner that neither animals nor men, except themselves, could have access to it. A European would never have imagined that a stone of this kind was intended for such a purpose, if he had found it by accident somewhere else.

Mr. Stow mentions various implements of stone which were manufactured by Bushmen with much labour and skill, but these were only produced after their contact with other races, and were confined to small localities. None of them surpassed the common spherical weight as a work of labour or art.

There is no record of a European having ever seen a Bushman manufacturing other stone implements than knives and arrowheads, and no one except Mr. Stow appears to have made inquiry into the matter until it was impossible to derive any information from the people themselves. Even he commenced his investigations at least half a century too late to gain full knowledge of the


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114 any beneficial result; and that English acquirements were held in great contempt. The government then encouraged nothing but Oriental learning; and English, instead of being cultivated as a literary and scientific language, was abandoned to menial servants and dependents, who hoped by means of it to make a profit of the ignorance of their masters. It was first rescued from this state of degradation by Lord who made it the language of diplomatic correspondence. It was afterwards publicly recognised as the most convenient channel, through which the upper and middle classes of the natives could obtain access to the knowledge of the West; and many very good seminaries were established, to enable them to acquire it. The prejudice against English has now disappeared, and to know it, has become a distinction to which people of all classes aspire. There can be no doubt therefore of our now being able to make a deep and permanent impression on the Hindu nation through this medium, if sufficient means of instruction are provided.

Another argument urged for teaching Arabic and Sanskrit is, that they are absolutely necessary for


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54 matter. But as the various crude unpolished implements found in all parts of South Africa were in use by the Bushmen when white men first came in contact with those savages, there can be no doubt that they fashioned them.

In many other parts of the world perforated stones are plentiful, but most of them differ in some respects from those drilled by the Bushmen, which were all of one type. In the Antiquarian Museum at Edinburgh there is a very fine collection of such stones found in Scotland. There are small ones evidently used in comparatively recent times as weights for nets and in spinning, there are enormously large ones also of not very ancient manufacture, and there are many of the usual size of the Bushman implement. Some are elegantly ornamented, showing the use of tools of metal. Others have holes the same size throughout, leading to a similar conclusion. Those that have holes narrowing from both sides towards the centre, like all the Bushman stones, are usually flat at top and bottom, not globular in form. The Bushman for some unknown reason preferred an approximate sphere, thus any observant eye with a series of each in view would at once detect that they were made by different classes of workmen.

People in a low condition of society do not use clothing for purposes of modesty, but to protect themselves against inclement weather. And as the Bushmen were hardly affected by any degree of either heat or cold that is experienced in South Africa, whether on the plains in midsummer or on the mountains in midwinter, the raiment of the males was usually scanty, and in the chase was thrown entirely aside. At the best it consisted merely of the skin of an animal wrapped round the person. Adult females wore a little apron, and fastened a skin over their shoulders. Both sexes used belts, which in times of scarcity they tightened to assuage the pangs of hunger, and on festive occasions they rubbed their bodies with grease and coloured clays or soot, sometimes powdered with aromatic plants such as buchu, which made them even more ugly than they were by nature.

When the men expected to meet an enemy, they fastened their arrows in an erect position round their heads, in order to appear as formidable as possible. But they never exposed


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Rh the improvement of the vernacular dialects. The latter, it is said, are utterly incapable of representing European ideas; and the natives must therefore have recourse to the congenial, accessible, and inexhaustible stores of their classical languages. To adopt English phraseology would be grotesque patchwork; and the condemnation of the classical languages to oblivion, would consign the dialects to utter helplessness and irretrievable barbarism.

The experience both of the East and West demonstrates, that the difficulty which this argument supposes never can exist. If the national language can easily express any new idea which is introduced from abroad, a native term is usually adopted. But, if not, the word, as well as the meaning, are imported together from the same fountain of supply. This is the ordinary process; but the supply of words is not always limited to the strict measure of our wants. Languages are amplified and refined by scholars, who naturally introduce the foreign words with which their minds are charged, and which, from their being in the habit of using them, appear to them to be more expressive than any other. Hence that wealth of words, that choice of verbal signs,—some of domestic and others of foreign origin; some borrowed from cognate, and others from radically different


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116 sources, which characterises the languages of the modern civilised nations. The naturalisation of foreign knowledge is, no doubt, a task of some difficulty; but history proves that as fast as it can be introduced, words are found in more than sufficient abundance to explain it to the people, without any special provision being necessary for that purpose. The greater effort involves the less; and this is the first time any body ever thought of separating them.

Take our own language as an example. Saxon is the ground-work of it; Norman-French was first largely infused into it: then Latin and Greek, on the revival of letters; and, last of all, a few words from other modern languages. Each of these has blended harmoniously with the rest; and the whole together has become one of the most powerful, precise, and copious languages in the world. Yet Latin, and Greek, and French are only very distantly related to the Saxon. It is curious that our own language, which we know to be so consistent and harmonious, had formerly the same reproach of incongruity cast on it. called it an ignoble and barbarous mixture of jarring materials; to which justly replied, that although English is compounded of different languages, they have been completely fused into one


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Rh and that no Englishman ordinarily thinks of the pedigree of the words which he uses, or is in the least offended by the difference in their origin. The same may be said, more or less, of all the modern European languages. If Bengalee and Hindusthanee ever become as well fitted for every purpose of literature and science as English and French, no person will have reason to complain of the process by which this may have been effected. A similar process has been gone through in India. Sanskrit itself was engrafted by a race of conquerors on the national languages, and very evident traces of its incongruity with them exist in the south of India, and in various hilly tracts. The Mahommedan invaders afterwards introduced a profusion of Arabic and Persian, and a few Turkish words. The Portuguese contributed the naval vocabulary and many other words, which are now so blended with the vernacular dialects as not to be distinguishable by the natives from words of ancient Indian origin. And, lastly, numerous English words have been already naturalised, and others are daily becoming so through the medium of our civil and military systems, of our national customs


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 moved the tray. "Some time I'll have a mahogany tea-table," she said happily.

She had brought in two cups, two plates. For herself, a straight chair, but for the guest the big wing-chair, which she pantingly tugged to the table.

She had finished all the preparations she could think of. She sat and waited. She listened for the door-bell, the telephone. Her eagerness was stilled. Her hands drooped.

Surely Vida Sherwin would hear the summons.

She glanced through the bay-window. Snow was sifting over the ridge of the Howland house like sprays of water from a hose. The wide yards across the street were gray with moving eddies. The black trees shivered. The roadway was gashed with ruts of ice.

She looked at the extra cup and plate. She looked at the wing-chair. It was so empty.

The tea was cold in the pot. With wearily dipping fingertip she tested it. Yes. Quite cold. She couldn't wait any longer.

The cup across from her was icily clean, glisteningly empty.

Simply absurd to wait. She poured her own cup of tea. She sat and stared at it. What was it she was going to do now? Oh yes; how idiotic; take a lump of sugar.

She didn't want the beastly tea.

She was springing up. She was on the couch, sobbing.

She was thinking more sharply than she had for weeks.

She reverted to her resolution to change the town—awaken it, prod it, "reform" it. What if they were wolves instead of lambs? They'd eat her all the sooner if she was meek to them. Fight or be eaten. It was easier to change the town completely than to conciliate it! She could not take their point of view; it was a negative thing; an intellectual squalor; a swamp of prejudices and fears. She would have to make them take hers. She was not a Vincent de Paul, to govern and mold a people. What of that? The tiniest change in their distrust of beauty would be the beginning of the end; a seed to sprout and some day with thickening roots to crack their wall of mediocrity. If she could not, as she desired, do a great thing nobly and with laughter, yet she need not be con-

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 and institutions, and, above all, of our literature and science, which are now extensively cultivated by the rising generation. Of these auxiliary languages, the ancient unadulterated Persian is closely allied to the Sanskrit; but Arabic, with which Persian has been completely saturated since the conquest of Persia by the Arabians, is as unlike Sanskrit as it is possible for one language to be unlike another. The Sanskrit delights in compounds: the Arabic abhors the composition of words, and expresses complex ideas by circumlocution. The Sanskrit verbal roots are almost universally biliteral: the Arabic roots are as universally triliteral. They have scarcely a single word in common. They are written in opposite directions; Sanskrit, from left to right; Arabic, from right to left. “In whatever light we view them,” observes Sir, “they seem totally distinct; and must have been invented by two different races of men.” Portuguese and English, on the other hand, through their close connection


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 tent with village nothingness. She would plant one seed in the blank wall.

Was she just? Was it merely a blank wall, this town which to three thousand and more people was the center of the universe? Hadn't she, returning from Lac-qui-Meurt, felt the heartiness of their greetings? No. The ten thousand Gopher Prairies had no monopoly of greetings and friendly hands. Sam Clark was no more loyal than girl librarians she knew in St. Paul, the people she had met in Chicago. And those others had so much that Gopher Prairie complacently lacked—the world of gaiety and adventure, of music and the integrity of bronze, of remembered mists from tropic isles and Paris nights and the walls of Bagdad, of industrial justice and a God who spake not in doggerel hymns.

One seed. Which seed it was did not matter. All knowledge and freedom were one. But she had delayed so long in finding that seed. Could she do something with this Thanatopsis Club? Or should she make her house so charming that it would be an influence? She'd make Kennicott like poetry. That was it, for a beginning! She conceived so clear a picture of their bending over large fair pages by the fire (in a non-existent fireplace) that the spectral presences slipped away. Doors no longer moved; curtains were not creeping shadows but lovely dark masses in the dusk; and when Bea came home Carol was singing at the piano which she had not touched for many days.

Their supper was the feast of two girls. Carol was in the dining-room, in a frock of black satin edged with gold, and Bea, in blue gingham and an apron, dined in the kitchen; but the door was open between, and Carol was inquiring, "Did you see any ducks in Dahl's window?" and Bea chanting, "No, ma'am. Say, ve have a svell time, dis afternoon. Tina she have coffee and knäckebröd, and her fella vos dere, and've yoost laughed and laughed, and her fella say he vos president and he going to make me queen of Finland, and Ay stick a fedder in may hair and say Ay bane going to go to var—oh, ve vos so foolish and've laugh so!"

When Carol sat at the piano again she did not think of her husband but of the book-drugged hermit, Guy Pollock. She wished that Pollock would come calling.

"If a girl really kissed him, he'd creep out of his den and be human. If Will were as literate as Guy, or Guy were as

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Page 13 — Dear Colleague Letter: Sexual Violence occurred in a classroom during school hours with a single complainant.

 * (D)

Both parties must be notified, in writing, about the outcome of both the complaint and any appeal, i.e., whether harassment was found to have occurred. OCR recommends that schools provide the written determination of the final outcome to the complainant and the alleged perpetrator concurrently. Title IX does not require the school to notify the alleged perpetrator of the outcome before it notifies the complainant.

Due to the intersection of Title IX and FERPA requirements, OCR recognizes that there may be confusion regarding what information a school may disclose to the complainant. FERPA generally prohibits the nonconsensual disclosure of personally identifiable information from a student's "education record." However, as stated in the 2001 Guidance, FERPA permits a school to disclose to the harassed student information about the sanction imposed upon a student who was found to have engaged in harassment when the sanction directly relates to the harassed student. This includes an order that the harasser stay away from the harassed student, or that the harasser is prohibited from attending school for a period of time, or transferred to other classes or another residence hall. Disclosure of other information in the student's "education record," including information about sanctions that do not relate to the harassed student, may result in a violation of FERPA.

Further, when the conduct involves a crime of violence or a non-forcible sex offense, FERPA permits a postsecondary institution to disclose to the alleged victim the final results of a


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 executive as Will, I think I could endure even Gopher Prairie.

"It's so hard to mother Will. I could be maternal with Guy. Is that what I want, something to mother, a man or a baby or a town? I will have a baby. Some day. But to have him isolated here all his receptive years

"And so to bed.

"Have I found my real level in Bea and kitchen-gossip?

"Oh, I do miss you, Will. But it will be pleasant to turn over in bed as often as I want to, without worrying about waking you up.

"Am I really this settled thing called a 'married woman'? I feel so unmarried tonight. So free. To think that there was once a Mrs. Kennicott who let herself worry over a town called Gopher Prairie when there was a whole world outside it!

"Of course Will is going to like poetry."

A black February day. Clouds hewn of ponderous timber weighing down on the earth; an irresolute dropping of snow specks upon the trampled wastes. Gloom but no veiling of angularity. The lines of roofs and sidewalks sharp and inescapable.

The second day of Kennicott's absence.

She fled from the creepy house for a walk. It was thirty below zero; too cold to exhilarate her. In the spaces between houses the wind caught her. It stung, it gnawed at nose and ears and aching cheeks, and she hastened from shelter to shelter, catching her breath in the lee of a barn, grateful for the protection of a billboard covered with ragged posters showing layer under layer of paste-smeared green and streaky red.

The grove of oaks at the end of the street suggested Indians, hunting, snow-shoes, and she struggled past the earth-banked cottages to the open country, to a farm and a low hill corrugated with hard snow. In her loose nutria coat, seal toque, virginal cheeks unmarked by lines of village jealousies, she was as out of place on this dreary hillside as a scarlet tanager on an ice-floe. She looked down on Gopher Prairie. The snow, stretching without break from streets to devouring prairie beyond, wiped out the town's pretense of being a shelter. The houses were black specks on a white sheet. Her heart

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Rh with Latin and Greek, have a great deal in common with Sanskrit.

In the face of these facts it is gravely asserted to be “indispensably necessary” to cultivate congenial classical languages, in order to enrich and embellish the popular Indian dialects. Then, with a strange inconsistency, it is proposed to cultivate, for this purpose, as being a congenial language, the Arabic, which is the most radically different from the Indian dialects of any language that could be named; and, lastly, the English language, which has a distant affinity to those dialects, through the Saxon, and a very near connection with them through the Latin and Greek, is rejected as uncongenial.

When we once go beyond the limits of the popular vocabulary, Sanskrit, Arabic, and English are equally new to the people. They have a word to learn which they did not know before; and it is


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 shivered with that still loneliness as her body shivered with the wind.

She ran back into the huddle of streets, all the while protesting that she wanted a city's yellow glare of shop-windows and restaurants, or the primitive forest with hooded furs and a rifle, or a barnyard warm and steamy, noisy with hens and cattle, certainly not these dun houses, these yards choked with winter ash-piles, these roads of dirty snow and clotted frozen mud. The zest of winter was gone. Three months more, till May, the cold might drag on, with the snow ever filthier, the weakened body less resistent. She wondered why the good citizens insisted on adding the chill of prejudice, why they did not make the houses of their spirits more warm and frivolous, like the wise chatterers of Stockholm and Moscow.

She circled the outskirts of the town and viewed the slum of "Swede Hollow." Wherever as many as three houses are gathered there will be a slum of at least one house. In Gopher Prairie, the Sam Clarks boasted, "you don't get any of this poverty that you find in cities—always plenty of work—no need of charity—man got to be blame shiftless if he don't get ahead." But now that the summer mask of leaves and grass was gone, Carol discovered misery and dead hope. In a shack of thin boards covered with tar-paper she saw the washerwoman, Mrs. Steinhof, working in gray steam. Outside, her six-year-old boy chopped wood. He had a torn jacket, muffler of a blue like skimmed milk. His hands were covered with red mittens through which protruded his chapped raw knuckles. He halted to blow on them, to cry disinterestedly.

A family of recently arrived Finns were camped in an abandoned stable. A man of eighty was picking up lumps of coal along the railroad.

She did not know what to do about it. She felt that these independent citizens, who had been taught that they belonged to a democracy, would resent her trying to play Lady Bountiful.

She lost her loneliness in the activity of the village industries—the railroad-yards with a freight-train switching, the wheat-elevator, oil-tanks, a slaughter-house with blood-marks on the snow, the creamery with the sleds of farmers and piles of milk-cans, an unexplained stone hut labeled "Danger—Powder Stored Here." The jolly tombstone-yard, where a utilitarian sculptor in a red calfskin overcoat whistled as he

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70 every daily occupation of life : he feared God and nothing else.' To fear God and nothing else,—this is moral courage."

You must think well before you do anything. If you then find it to be right, do it without hesitation. If you are young or ignorant of any subject, consult with those who have knowledge on that particular subject and act accordingly. People do not act generally as they think, because they do not always think consistently. They are so changeful in their opinions and thoughts. When they hear of or read of any moral principles, then they think of them and desire to act according to those principles. But when it comes to action, they do not remember the principles, but only do what they like.

Politicians are considered to have the greatest courage of mind. But Pandits belonging to all religions, being mostly bound


text: The King of Schnorrers (Collection)/The King of Schnorrers


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 hammered the shiniest of granite headstones. Jackson Elder's small planing-mill, with the smell of fresh pine shavings and the burr of circular saws. Most important, the Gopher Prairie Flour and Milling Company, Lyman Cass president. Its windows were blanketed with flour-dust, but it was the most stirring spot in town. Workmen were wheeling barrels of flour into a box-car; a farmer sitting on sacks of wheat in a bobsled argued with the wheat-buyer; machinery within the mill boomed and whined, water gurgled in the ice-freed mill-race.

The clatter was a relief to Carol after months of smug houses. She wished that she could work in the mill; that she did not belong to the caste of professional-man's-wife.

She started for home, through the small slum. Before a tar-paper shack, at a gateless gate, a man in rough brown dogskin coat and black plush cap with lappets was watching her. His square face was confident, his foxy mustache was picaresque. He stood erect, his hands in his side-pockets, his pipe puffing slowly. He was forty-five or -six, perhaps.

"How do, Mrs. Kennicott," he drawled.

She recalled him—the town handyman, who had repaired their furnace at the beginning of winter.

"Oh, how do you do," she fluttered.

"My name 's Bjornstam. 'The Red Swede' they call me. Remember? Always thought I'd kind of like to say howdy to you again."

"Ye—yes I've been exploring the outskirts of town."

"Yump. Fine mess. No sewage, no street cleaning, and the Lutheran minister and the priest represent the arts and sciences. Well, thunder, we submerged tenth down here in Swede Hollow are no worse off than you folks. Thank God, we don't have to go and purr at Juanity Haydock at the Jolly Old Seventeen."

The Carol who regarded herself as completely adaptable was uncomfortable at being chosen as comrade by a pipe-reeking odd-job man. Probably he was one of her husband's patients. But she must keep her dignity.

"Yes, even the Jolly Seventeen isn't always so exciting. It's very cold again today, isn't it. Well"

Bjornstam was not respectfully valedictory. He showed no signs of pulling a forelock. His eyebrows moved as though they had a life of their own. With a subgrin he went on:

"Maybe I hadn't ought to talk about Mrs. Haydock and

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120 as easy for them to learn an English as a Sanskrit word. Numerous Arabic, English, and Portuguese terms have thus become household words in India, the Sanskrit synonymes of which are utterly unknown to the people. The first form part and parcel of the popular language: the last have no existence beyond the Shasters and the memories of a few hundred Pundits who are conversant with those old records. A gentleman, holding office in India, lately attempted to reduce to practice the theory now under consideration. In his official communications to the neighbouring courts, every word not of Sanskrit origin was carefully expunged, and a pure Sanskrit word was substituted for it. Thus Sungrahuk was thrust in the place of Collector, Sunkhuk of Number, Adhesh of Hukm, Bhoomadhikaree of Zemeendar; and so on. The consequence was, that his communications were unintelligible to the persons to whom they were addressed; and it would have been better if they had been in Persian, from which we had at that time just escaped, than in such a learned jargon.

As it is therefore a matter of indifference from what source the vocabulary is derived, while it is admitted that English must be cultivated for the sake of the knowledge which it contains, will it not be advisable to make English serve both these


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 her Solemcholy Seventeen in that fresh way. I suppose I'd be tickled to death if I was invited to sit in with that gang. I'm what they call a pariah, I guess. I'm the town badman, Mrs. Kennicott: town atheist, and I suppose I must be an anarchist, too. Everybody who doesn't love the bankers and the Grand Old Republican Party is an anarchist."

Carol had unconsciously slipped from her attitude of departure into an attitude of listening, her face full toward him, her muff lowered. She fumbled:

"Yes, I suppose so." Her own grudges came in a flood. "I don't see why you shouldn't criticize the Jolly Seventeen if you want to. They aren't sacred."

"Oh yes, they are! The dollar-sign has chased the crucifix clean off the map. But then, I've got no kick. I do what I please, and I suppose I ought to let them do the same."

"What do you mean by saying you're a pariah?"

"I'm poor, and yet I don't decently envy the rich. I'm an old bach. I make enough money for a stake, and then I sit around by myself, and shake hands with myself, and have a smoke, and read history, and I don't contribute to the wealth of Brother Elder or Daddy Cass."

"You I fancy you read a good deal."

"Yep. In a hit-or-a-miss way. I'll tell you: I'm a lone wolf. I trade horses, and saw wood, and work in lumber-camps—I'm a first-rate swamper. Always wished I could go to college. Though I s'pose I'd find it pretty slow, and they'd probably kick me out."

"You really are a curious person, Mr."

"Bjornstam. Miles Bjornstam. Half Yank and half Swede. Usually known as 'that damn lazy big-mouthed calamity-howler that ain't satisfied with the way we run things.' No, I ain't curious—whatever you mean by that! I'm just a bookworm. Probably too much reading for the amount of digestion I've got. Probably half-baked. I'm going to get in 'half-baked' first, and beat you to it, because it's dead sure to be handed to a radical that wears jeans!"

They grinned together. She demanded:

"You say that the Jolly Seventeen is stupid. What makes you think so?"

"Oh, trust us borers into the foundation to know about your leisure class. Fact, Mrs. Kennicott, I'll say that far as I can make out, the only people in this man's town that do

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Page 14 — Dear Colleague Letter: Sexual Violence disciplinary proceeding against the alleged perpetrator, regardless of whether the institution concluded that a violation was committed. Additionally, a postsecondary institution may disclose to anyone—not just the alleged victim—the final results of a disciplinary proceeding if it determines that the student is an alleged perpetrator of a crime of violence or a non-forcible sex offense, and, with respect to the allegation made, the student has committed a violation of the institution's rules or policies.

Postsecondary institutions also are subject to additional rules under the Clery Act. This law, which applies to postsecondary institutions that participate in Federal student financial aid programs, requires that "both the accuser and the accused must be informed of the outcome of any institutional disciplinary proceeding brought alleging a sex offense." Compliance with this requirement does not constitute a violation of FERPA. Furthermore, the FERPA limitations on redisclosure of information do not apply to information that postsecondary institutions are required to disclose under the Clery Act. Accordingly, postsecondary institutions may not require a complainant to abide by a nondisclosure agreement, in writing or otherwise, that would prevent the redisclosure of this information.

Education and Prevention

In addition to ensuring full compliance with Title IX, schools should take proactive measures to prevent sexual harassment and violence. OCR recommends that all schools implement preventive education programs and make victim resources, including comprehensive victim services, available. Schools may want to include these education programs in their (1) orientation programs for new students, faculty, staff, and employees; (2) training for students who serve as advisors in residence halls; (3) training for student athletes and coaches; and (4) school assemblies and "back to school nights." These programs should include a


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 have any brains—I don't mean ledger-keeping brains or duck-hunting brains or baby-spanking brains, but real imaginative brains—are you and me and Guy Pollock and the foreman at the flour-mill. He's a socialist, the foreman. (Don't tell Lym Cass that! Lym would fire a socialist quicker than he would a horse-thief!)"

"Indeed no, I sha'n't tell him."

"This foreman and I have some great set-to's. He's a regular old-line party-member. Too dogmatic. Expects to reform everything from deforestration to nosebleed by saying phrases like 'surplus value.' Like reading the prayer-book. But same time, he's a Plato J. Aristotle compared with people like Ezry Stowbody or Professor Mott or Julius Flickerbaugh."

"It's interesting to hear about him."

He dug his toe into a drift, like a schoolboy. "Rats. You mean I talk too much. Well, I do, when I get hold of somebody like you. You probably want to run along and keep your nose from freezing."

"Yes, I must go, I suppose. But tell me: Why did you leave Miss Sherwin, of the high school, out of your list of the town intelligentsia?"

"I guess maybe she does belong in it. From all I can hear she's in everything and behind everything that looks like a reform—lot more than most folks realize. She lets Mrs. Reverend Warren, the president of this-here Thanatopsis Club, think she's running the works, but Miss Sherwin is the secret boss, and nags all the easy-going dames into doing something. But way I figure it out You see, I'm not interested in these dinky reforms. Miss Sherwin's trying to repair the holes in this barnacle-covered ship of a town by keeping busy bailing out the water. And Pollock tries to repair it by reading poetry to the crew! Me, I want to yank it up on the ways, and fire the poor bum of a shoemaker that built it so it sails crooked, and have it rebuilt right, from the keel up."

"Yes—that—that would be better. But I must run home. My poor nose is nearly frozen."

"Say, you better come in and get warm, and see what an old bach's shack is like."

She looked doubtfully at him, at the low shanty, the yard that was littered with cord-wood, moldy planks, a hoopless wash-tub. She was disquieted, but Bjornstam did not give her the opportunity to be delicate. He flung out his hand in a

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 welcoming gesture which assumed that she was her own counselor, that she was not a Respectable Married Woman but fully a human being. With a shaky, "Well, just a moment, to warm my nose," she glanced down the street to make sure that she was not spied on, and bolted toward the shanty.

She remained for one hour, and never had she known a more considerate host than the Red Swede.

He had but one room: bare pine floor, small work-bench, wall bunk with amazingly neat bed, frying-pan and ash-stippled coffee-pot on the shelf behind the pot-bellied cannon-ball stove, backwoods chairs—one constructed from half a barrel, one from a tilted plank—and a row of books incredibly assorted; Byron and Tennyson and Stevenson, a manual of gas-engines, a book by Thorstein Veblen, and a spotty treatise on "The Care, Feeding, Diseases, and Breeding of Poultry and Cattle."

There was but one picture—a magazine color-plate of a steep-roofed village in the Harz Mountains which suggested kobolds and maidens with golden hair.

Bjornstam did not fuss over her. He suggested, "Might throw open your coat and put your feet up on the box in front of the stove." He tossed his dogskin coat into the bunk, lowered himself into the barrel chair, and droned on:

"Yeh, I'm probably a yahoo, but by gum I do keep my independence by doing odd jobs, and that's more 'n these polite cusses like the clerks in the banks do. When I'm rude to some slob, it may be partly because I don't know better (and God knows I'm not no authority on trick forks and what pants you wear with a Prince Albert), but mostly it's because I mean something. I'm about the only man in Johnson County that remembers the joker in the Declaration of Independence about Americans being supposed to have the right to 'life, liberty, and the pursuit of happiness.'

"I meet old Ezra Stowbody on the street. He looks at me like he wants me to remember he's a highmuckamuck and worth two hundred thousand dollars, and he says, 'Uh, Bjornquist'

"'Bjornstam's my name, Ezra,' I says. He knows my name, all rightee.

Well, whatever your name is,' he says, 'I understand you have a gasoline saw. I want you to come around and saw up four cords of maple for me,' he says.

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Rh themselves unnecessarily to danger, and tried always to attack from an ambush or a place that would give them the advantage of striking the first blow before their adversaries were aware of their presence. A poisoned arrow, shot from a little scrub in which a Bushman was lying concealed, often ended the career of an unwary Hottentot traveller.

This habit caused them to be feared by Hottentots and Bantu alike. There is an excellent representation of the feeling of the Bantu towards the primitive people, given by a Zulu to the reverend Canon Callaway, and published by him in his Nursery Tales, Traditions, and Histories of the Zulus. It reads as follows:

“They are dreaded by men; they are not dreadful for the greatness of their bodies, nor for appearing to be men; no, there is no appearance of manliness; and greatness there is none; they are little things, which go under the grass. And a man goes looking in front of him, thinking, ‘If there come a man or a wild beast, I shall see.’ And, forsooth, an Umutwa is there under the grass; and the man feels when he is already pierced by an arrow; he looks, but does not see the man who shot it. It is this, then, that takes away the strength; for they will die without seeing the man with whom they will fight. On that account, then, the country of the Abatwa is dreadful; for men do not see the man with whom they are going to fight. The Abatwa are fleas, which are unseen whence they come; yet they teaze a man; they rule over him, they exalt themselves over him, until he is unable to sleep, being unable to lie down, and unable to quiet his heart; for the flea is small; the hand of a man is large; it is necessary that it should lay hold of something which can be felt. Just so are the Abatwa; their strength is like that of the fleas, which have the mastery in the night, and the Abatwa have the mastery through high grass, for it conceals them; they are not seen. That then is the power with which the Abatwa conquer men, concealment, they laying wait for men; they see them for their part, but they are not seen.

“The bow with which they shoot beast or man does not kill by itself alone; it kills because the point of their arrow is smeared with poison, in order that as soon as it enters, it may cause much blood to flow; blood runs from the whole body, and the man dies