The Department of Education’s recent comments strongly suggest that it will be revisiting the 2011 Dear Colleague Letter, particularly whether the required process for investigating allegations of sexual assault are unfair to, and biased against, respondents (students defending themselves against allegations of sexual assault). On the heels of this announcement, Columbia University recently settledthe twice-dismissed lawsuit by a male student accused, but exonerated, of allegations that he sexually assaulted a student. The plaintiff student alleged that Columbia engaged in gender-based discrimination after he was cleared of the allegations.
The 2011 Dear Colleague Letter was the high water mark for a process that was heavily weighted in favor of the complainant. Over the years, particularly as codified by the October 2014 regulations promulgated pursuant to the Violence Against Women Reauthorization Act (“VAWA”), the pendulum has been swinging back towards affording respondents defined due process rights, including mandated notice and advisor-of-choice provisions. However, colleges and universities still are afforded great discretion in how to proceed with the investigation and resolution of Title IX complaints. The Department of Education's recent comment is a potential further swing of the pendulum toward greater due process for respondents.
What does this mean for institutions of higher education? Expect more specific requirements for due process for respondents - more specific notice, more input by respondent into the investigative process, and an assault on the “single investigator” model. Also expect a push to provide schools with the discretion to delay its Title IX process while a criminal investigation is ongoing - thereby removing the Hobson's Choice faced by respondents of defending against the school's disciplinary process and giving up the Fifth Amendment right to remain silent; or invoking that right and being unable to provide a statement in the investigative process or to testify at a disciplinary hearing.
Educational institutions are wise to build into their Title IX process greater due process to respondents than that required by current law, in support of both the institution’s culture and to minimize the likelihood of lawsuits surviving past the motion practice stage (if they are filed at all). Schools should anticipate a future mandate from the Department of Education that will require further modification of the existing Title IX policies and procedures.