On the heels of Secretary of Education Betsy DeVos’s public remarks on Title IX enforcement, the Deputy Assistant Secretary for Strategic Operations and Outreach in the Office for Civil Rights (OCR), Candice Jackson, participated in a telephonic Q&A with the National Association of College and University Attorneys (NACUA) last week. During the briefing, Jackson answered questions about the OCR’s recent guidance document regarding Title IX, which we reported on here. According to Jackson, the recent guidance document signals the issues that may be included in the anticipated guidance that will come after a notice and comment period. In addition, it reveals how the OCR views the appropriate role at the federal level to proscribe and standardize institutions’ responses to campus sexual misconduct. Jackson stated that the new guidance does not impose any “new burdens” on institutions and that the only “musts” in the guidance are nothing more than a reiteration of the 2001 Guidance discussed in our recent Alert. The 2001 Guidance remains in effect, and Jackson encouraged schools to review that guidance and to implement their current Title IX polices through a “lens of impartiality and fair process.”

Over the ninety-minute telephone briefing, Jackson fielded a wide array of questions. Perhaps most notably, when asked about the propriety of using an informal resolution process, Jackson said that, where appropriate, mediation or other forms of informal resolution could be used even to resolve Title IX complaints involving allegations of sexual assault. Jackson’s statement has already drawn criticism from sexual assault advocates, who contend that the option to mediate Title IX complaints involving sexual assault will make sexual assault victims vulnerable to pressure from their institutions to agree to a resolution process that may not be best suited for them.

Also generating a fair amount of attention was footnote 19 of the recent OCR Title IX guidance, which states that “the standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases.” NACUA members inquired whether this means the OCR will insist that the same procedures apply to all student disciplinary matters, even though to do so would exceed the OCR’s jurisdiction beyond the federal laws that the OCR is charged with enforcing. Jackson avoided the jurisdictional question, and instead said footnote 19 was meant to “flag” the procedural issue for institutions and as a “caution” for schools as they consider whether it “makes sense” to use a separate procedure for Title IX investigations as compared to other student conduct issues.

One NACUA member asked how institutions should address prior or pending OCR resolution agreements that require certain changes or action items that are based solely on the now withdrawn 2011 and 2014 OCR guidance regarding Title IX. According to Jackson, such situations will not be “terribly prevalent” and when they do arise, they will be addressed by the OCR on an individual basis. She went on to say that to the extent that the OCR has required something of an institution solely based on the 2011 or 2014 guidance, the OCR is willing to revisit that if the institution so desires.

Possible changes that Jackson discussed, without making any commitments, also included the following: broadening the availability of interim measures for use by both parties as opposed to interim measures that currently burden one party more than another; emphasizing the “crucial importance” of notice of the charges to the accused student while also respecting confidentiality; considering prior sexual history with the help of a “well trained investigator”; and limiting institutions’ responsibility to address off-campus harassment to only situations where the institution has control over the program or activity in which the conduct occurred.

To date, there is no specific timeline for the anticipated notice and comment period, but Jackson did say that the entire process may take anywhere from 9-18 months. There are several important phases of this process, including the current phase of generating informal comments from interested parties and stakeholders. Thereafter, the OCR will prepare a draft, and once the draft is published, a formal public comment period will commence. The public comment period will last a minimum of 30 days. Jackson promised that the final guidance would include an “implementation window,” which she described as a period for institutions to “absorb and respond” to the final guidance. As she has stated in prior remarks, Jackson urged institutions to “weigh in” and contact the OCR to provide input. We will continue to monitor further activity regarding the OCR’s development of Title IX guidance.