In April, the Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter (Letter) which offers guidance with respect to the reporting requirements set forth in Title IX of the Education Amendments of 1972, 20 U.S.C. Sec. 1681, et seq. (Title IX). Title IX prohibits discrimination on the basis of sex in any federally funded education program or activity. The Letter indicates that sexual violence and harassment give rise to such discrimination, and reminds all schools that receive federal funding (including school districts, colleges, and universities) to take immediate and appropriate steps to respond to sexual violence in accordance with the requirements set forth in Title IX. Sexual violence means “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent,” and includes acts such as rape, sexual assault, and sexual battery.
The Letter discusses the Title IX requirements that are relevant to sexual violence and harassment, such as the need to: (i) publish a policy against sex discrimination; (ii) designate a Title IX coordinator to oversee complaints; and (iii) adopt and publish grievance procedures for prompt and equitable resolution of complaints. Moreover, the Letter describes proactive measures that schools can take to prevent sexual violence, describes how complaints may be handled simultaneously by the school and law enforcement (investigation by law enforcement does not relieve a school of its duty to investigate and deal with acts of sexual violence), and addresses the crossover of Title IX, the Family Educational Rights and Privacy Act (FERPA), and the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act (Clery Act).
In a fact sheet that corresponds with the Letter, the Office for Civil Rights articulates the following obligations for schools under Title IX:
- Once a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate action to investigate or otherwise determine what occurred.
- If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.
- A school must take steps to protect the complainant as necessary, including interim steps taken prior to the final outcome of the investigation.
- A school must provide a grievance procedure for students to file complaints of sex discrimination, including complaints of sexual violence. These procedures must include an equal opportunity for both parties to present witnesses and other evidence and the same appeal rights.
- A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.
- A school must notify both parties of the outcome of the complaint.
A copy of the Letter can be found at the following link on the Department of Education’s website: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html