Executive Summary: Title IX of the Education Amendments of 1972 (Title IX) and its corresponding regulations prohibit sex discrimination in education programs or activities conducted by educational institutions that receive federal financial assistance. It is well-settled that sexual harassment which creates a hostile environment constitutes sex discrimination prohibited by Title IX. On September 22, 2017, the U.S. Department of Education, Office for Civil Rights (OCR), which enforces Title IX, issued a “Dear Colleague” letter and new Q&A on Campus Misconduct. The Dear Colleague letter explains that OCR’s prior letter dated April 4, 2011 and Q&A guidance dated April 29, 2014 (issued during the Obama administration) have both been withdrawn. OCR cited criticism as to the fairness of the prior guidance as part of the reason for issuing the new guidance.

OCR advised that revisions were necessary because prior guidance was “confusing and counterproductive” and “led to the deprivation of rights for many students – both accused students denied fair process and victims denied an adequate resolution of their complaints.” OCR intends to “develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits” through formal notice and comment rule making.

Summary of New Guidance

The “Q&A on Campus Sexual Misconduct” guidance answers twelve questions regarding educational institutions’ responsibility to investigate and resolve complaints of sexual misconduct. The guidance can be summarized as follows:

  • Regardless of whether a student makes a complaint of sexual misconduct, when the school knows or reasonably should know of an incident of sexual misconduct, the school is obligated to “take steps to understand what occurred and to respond appropriately,” keeping in mind students’ rights to due process and free speech. To this end, recipients of federal funds must designate one or more Title IX Coordinators to ensure compliance with investigative obligations.
  • Schools should consider whether “interim measures” are necessary for parties involved in an incident of sexual misconduct on a case by case basis. Interim measures may include counseling, extensions of time or other course-related adjustments, modifications of work or class schedules, campus escort services, restrictions in contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar accommodations. Interim measures should not favor one party over the other, and the school must make “every effort to avoid depriving any student of her of his education.”
  • Schools are required to adopt grievance procedures that provide for a “prompt and equitable” resolution of complaints of sex discrimination and sexual misconduct. OCR has previously advised that the following elements should be considered to determine if grievance procedures are prompt and equitable: whether the school “(i) provides notice of the school’s grievance procedures, including how to file a complaint, to students, parents of elementary and secondary school students, and employees; (ii) applies the grievance procedures to complaints filed by students or on their behalf alleging sexual misconduct carried out by employees, other students, or third parties; (iii) ensures an adequate, reliable, and impartial investigation of complaints, including the opportunity to present witnesses and other evidence; (iv) designates and follows a reasonably prompt time frame for major stages of the complaint process; (v) notifies the parties of the outcome of the complaint; and (vi) provides assurance that the school will take steps to prevent recurrence of sexual misconduct and to remedy its discriminatory effects, as appropriate.”
  • Schools shall make a “good faith effort to conduct a fair, impartial investigation in a timely manner;” however, OCR has not implemented a fixed time frame within which an investigation must be completed.
  • Schools shall conduct an equitable investigation. It is the school’s responsibility, not the parties’, to gather all the information necessary (including inculpatory and exculpatory) to evaluate a complaint. An impartial investigator who is free of actual or reasonably perceived biases must make an objective written determination as to whether (i) sexual misconduct occurred and (ii) redress is appropriate based on the sufficiency of the evidence. Institutional interests should not impair the investigator’s impartiality, and the investigator should avoid sex stereotypes and generalizations. If disciplinary action may result, the school should be certain to provide due process protections to the parties involved, including written notice and an opportunity for meaningful participation in the investigation. The processes used to investigate, such as the right to have an attorney present in an interview or hearing or the right to cross-examine witnesses, shall be equally available to all parties.
  • If appropriate, informal resolution procedures (which do not include a full investigation and adjudication) may be used to mediate a complaint only if all parties (i) were fully informed of the allegations and ability to have a formal resolution, and (ii) voluntarily agree to such informal procedures.
  • Investigators of sexual misconduct may use a preponderance of the evidence standard or a clear and convincing evidence standard; however, the standard should be equivalent to that used in other student misconduct matters.
  • Discipline should be proportionate to the violation, and consideration should be made with respect to the impact of removing a student from his or her education.
  • Written notice of the outcome of the investigation, if provided, should be provided to all parties. Institutions may allow an appeal by respondents or both parties.
  • Existing voluntary resolution agreements entered into between OCR and educational institutions remain binding.
  • Postsecondary institutions that participate in federal student financial aid programs remain subject to the Clery Act. Accordingly, such institutions must continue to “compile statistics for incidents of dating violence, domestic violence, sexual assault, and stalking” and submit annual security reports that “include certain policies, procedures, and programs pertaining to these incidents” and all possible sanctions that may be imposed if an investigation reveals a policy violation.

Bottom Line: Sexual misconduct remains an important issue on campus. Schools should continue to diligently investigate complaints of sexual misconduct consistent with the revised guidance issued in September 2017 (particularly Q&A No. 6 concerning equitable investigations) and may consider submitting comments when the Department of Education releases its proposed rules. If policies or procedures were changed due to prior guidance, institutions should review those changes and ensure that the policies are gender neutral and provide equal opportunities to both complainants and respondents in the investigatory and disciplinary processes.