On Friday, September 22, 2017, the Department of Education, Office of Civil Rights (OCR) officially withdrew two guidance documents issued under the Obama administration regarding implementation of Title IX on school campuses. In place of these guidance documents, the OCR issued new interim guidance documents regarding how schools should handle sexual assaults. The OCR indicated official guidance and directives will be issued after a formal notice and comment period.
The two documents and statements of policy withdrawn by the OCR on Friday include:
- Dear Colleague Letter on Sexual Violence, issued by the Office for Civil Rights at the U.S. Department of Education, dated April 4, 2011.
- Questions and Answers on Title IX and Sexual Violence, issued by the Office for Civil Rights at the U.S. Department of Education, dated April 29, 2014.
The interim guidance issued by the OCR includes a brief letter and a Question and Answer document, outlining recommendations, obligations and areas of flexibility for schools in responding to instances of sexual misconduct.
Notable changes and/or directives outlined in the new guidance documents include flexibility in allowing schools to establish their own evidentiary standard for student misconduct cases (“preponderance of the evidence” or “clear and convincing”), providing schools with the option to pursue informal resolutions of a Title IX complaint (i.e. mediation), and language indicating schools are not mandated to provide appeal procedures for the reporting party after a finding of “not responsible.”
Although these interim guidance documents have been issued and the Obama-era directives withdrawn, schools are unlikely to undertake major changes to existing policies and procedures until official and binding regulations are issued by the OCR. These final regulations will likely be issued in the next year to 18 months, following a formal notice and comment period.