HIGHLIGHTS:

  • The U.S. Department of Education rescinded two major Office for Civil Rights guidance documents interpreting the application of Title IX to reports of sexual misconduct.
  • Secretary of Education Betsy DeVos stated that this new guidance provides the Department's current view of Title IX compliance, pending the publication of new regulations following a notice-and-comment period.
  • Institutions must carefully consider making changes to existing policies until the completion of the notice-and-comment period and the Department's final regulations. Nonetheless, there are certain steps institutions can take now to evaluate Title IX compliance in the wake of the Department's new guidance.

The U.S. Department of Education began a new era in Title IX interpretation and enforcement with its Sept. 22, 2017, rescission of the "2011 Dear Colleague Letter" on sexual violence and the related "2014 Questions and Answers on Title IX and Sexual Violence." The Department's 2017 guidance raises many questions about which practices from the prior administration will be changing. Secretary of Education Betsy DeVos stated that this new guidance provides the Department's current view of Title IX compliance, pending the publication of new regulations following a notice-and-comment period.

Institutions must carefully consider making changes to existing policies until the completion of the notice-and-comment period and the Department's final regulations. Nonetheless, there are certain steps institutions can take now to evaluate Title IX compliance in the wake of the Department's new guidance.

Review Your Institution's Continuing Obligations: What does the Department of Education Still Require?

The first question to address is what legal obligations remain? Institutions should begin with Title IX's statutory language and regulations. See 20 U.S.C. §1681; 34 C.F.R Part 106. Next, institutions should consult the Department's guidance which remains in effect.

Currently, the following formal guidance documents still apply to reports of sexual misconduct:

Further, institutions remain obligated to comply with the Violence Against Women Reauthorization Act of 2013 and its accompanying regulations. See 34 C.F.R. Part 668.

Keep Apprised of State Legislation

Institutions should keep apprised of state legislative efforts. For example, Massachusetts has been reviewing for several years proposed legislation that would establish a state-governed compliance program for campus sexual misconduct matters. With extensive federal enforcement efforts over the past six years, such state intercession was often viewed as unnecessary and redundant. However, the rescission of the 2011 Dear Colleague Letter and related guidance may reignite state legislative efforts.

Evaluate the September 2017 "Questions and Answers" Against Current Policies

Although many institutions may elect to wait until the close of the notice-and-comment period and the publication of new regulations, the Department's September 2017 guidance emphasizes certain compliance issues that may be deemed to be in conflict with existing policies. Institutions should immediately review their existing Title IX policies and sexual misconduct processes to identify potential conflicts with the new guidance. Included below are some components of an institution's sexual misconduct policy that should be evaluated now.

One portion of the 2011 Dear Colleague Letter that garnered significant scrutiny was the requirement that institutions use the preponderance of the evidence standard in adjudicating cases that implicated an institution's sexual misconduct policy. The September 2017 guidance advises that institutions can now choose either the preponderance of the evidence standard or a clear and convincing evidence standard. However, the September 2017 guidance also states that the standard of evidence used in a sexual misconduct case should be consistent with the standard the institution applies in other student misconduct cases.

The September 2017 guidance eliminates the requirement that investigations be completed within 60 days. Instead, the Department advises that "[t]here is no fixed time frame under which a school must complete a Title IX investigation." The September 2017 guidance provides that "OCR will evaluate a school's good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution." Nonetheless, the 2001 Guidance, which remains in effect, requires institutions to establish "designated and reasonably prompt timeframes for the major stages of the complaint process" for responding to Title IX complaints. Consequently, institutions should review their timelines for completing major stages of their grievance procedures for Title IX complaints.

Under the September 2017 guidance, once a school decides to open an investigation that may lead to disciplinary action, the school should provide notice to the responding party that includes: 1) sufficient details, which are defined as "the identities of the parties involved, the specific section of the code of conduct allegedly violated, the precise conduct allegedly constituting the potential violation, and the date and location of the alleged incident;" and 2) "sufficient time to prepare a response before any initial interview."

The September 2017 guidance provides that the "decision-maker" must offer each party the same meaningful access to any information that will be used during the disciplinary meetings and hearings, including the investigation report. Further, the parties should be allowed to review the investigation report before the decision of responsibility or any hearing to decide responsibility.

The September 2017 guidance directs that in considering interim measures, "a school may not rely on fixed rules or operating assumptions that favor one party over another, nor may a school make such measures available only to one party." This guidance on interim measures may reflect the Department's current emphasis on fair and equitable procedural safeguards for accused students. Before the September 2017 guidance, it had been a Department position that in the case of interim measures, any disadvantage would be experienced primarily by the accused student (e.g., if the reporting student and the accused student lived in the same dormitory or were in the same class and one had to move, it would be the accused student who would be required to move unless the reporting student preferred to do so). Institutions should carefully review their practices with regard to interim measures to identify any fixed or uniform rules that disadvantage one party.

The September 2017 guidance offers a view of options with regard to the adjudicatory process that is likely to conflict substantively with certain components in the processes of many institutions. The guidance does not mandate these changes. While it may be premature to implement changes until the notice-and-comment period concludes and the regulations are issued, the new guidance forecasts the Department's view of compliance and identifies areas for potential policy revision.

  • Informal Resolutions: Unlike prior guidance which sought to limit informal resolution options, the 2017 guidance indicates that parties can agree to an informal resolution process that does not involve a full investigation and adjudication, such as mediation, provided the institution agrees that the complaint is appropriate for an informal process.
  • Appeals: While the 2011 and 2014 guidance required that institutions provide the same appeal rights to both the accused student and the reporting student, the September 2017 guidance allows institutions the flexibility to provide appeal rights solely to an accused student who is found responsible.