By: Katherine Demedis

In a press release on September 22, 2017, the Office for Civil Rights (OCR) of the U.S. Department of Education withdrew two statements of policy and guidance regarding Title IX of the Education Amendments of 1972 (Title IX) and issued new interim guidance.

The Department withdrew the Dear Colleague Letter on Sexual Violence issued by OCR on April 4, 2011 (2011 DCL) and the Questions and Answers on Title IX and Sexual Violence issued by OCR on April 29, 2014 (2014 Q&A).  In a letter dated September 22, 2017, the Department explained that it was withdrawing the Obama-era guidance documents because they were created without affording notice and the opportunity for public comment and the guidance forced institutions to adopt procedures that did not afford fundamental fairness and due process and were not required by Title IX law or regulation.

As the Secretary of Education Betsy DeVos announced in a speech about Title IX on September 7, the Department plans to use a rulemaking process that allows for public comment to formally replace the guidance.  It plans 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.”

In the interim, OCR has issued a Q&A on Campus Sexual Misconduct (2017 Q&A).  In addition, the Department will continue to rely on its Revised Sexual Harassment Guidance from 2001 (2001 Guidance), which was informed by a notice-and-comment process, as well as the Dear Colleague Letter on Sexual Harassment issued January 25, 2006.

Some of the significant changes in the Title IX guidance as a result of the 2017 Q&A are summarized here:

  • Standard of Evidence: The 2011 DCL required schools to use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred).  The 2017 Q&A states that schools may use either a “preponderance of the evidence” standard or a “clear and convincing evidence” standard.  It also notes in a footnote that the standard of evidence for evaluating claims of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases, citing a case where a district court found that a school denied basic fairness to the accused when it used a lower standard of evidence only in sexual misconduct cases.
  • Appeal Process: Although schools have never been required to have an appeal process to comply with Title IX, OCR stated in the 2011 DCL that if a school provides for appeal of the findings or the remedy it must be available to both parties.  Under the 2017 Q&A, the school may choose to allow an appeal (i) solely by the responding party (accused) or (ii) by both parties.
  • Interim Measures: The 2014 Q&A advised schools that when taking interim measures, schools “should minimize the burden on the complainant.”  It gave an example of when the complainant and alleged perpetrator share a residence hall and said that the school should not remove the complainant and allow the alleged perpetrator to remain without carefully considering the facts of the case.  The 2017 Q&A states that 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.”  It also states that interim measures should “be individualized and appropriate” and that the institution should make “every effort to avoid depriving any student of her or his education.”
  • Availability of Mediation: In the 2011 DCL, OCR stated that mediation was not appropriate even on a voluntary basis in cases involving allegations of sexual assault.  In contrast, the 2017 Q&A allows a school to facilitate an informal resolution, including mediation, to assist the parties to reach to voluntary resolution if 1) all parties voluntarily agree to participate in an informal resolution that does not involve a full investigation and adjudication after receiving a full disclosure of the allegations and their options for formal resolution and 2) if a school determines that the particular Title IX complaint is appropriate for such a process.  The 2001 Guidance states that the complainant must be notified of the right to end the informal process at any time and begin the formal stage of the complaint process.
  • Off-campus Sexual Harassment: The 2011 DCL instructed schools that an institution must process a student’s Title IX complaint “regardless of where the conduct occurred” explaining that students often experience the continuing effects of off-campus sexual harassment in the educational setting such that off-campus conduct could contribute to a hostile environment on campus.  The 2017 Q&A states in a footnote that OCR has informed institutions that “[a] university does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity of the recipient.”
  • Disciplinary Sanctions: The 2017 Q&A also notes that “[d]isciplinary sanction decisions must be made for the purpose of deciding how best to enforce the school’s code of student conduct while considering the impact of separating a student from her or his education.”  In addition, disciplinary sanctions “must be made as a proportionate response to the violation.”  Although this language does not directly contradict any directives in the 2011 DCL or 2014 Q&A, it is a departure from past practice where OCR and the Department have expressed concern that sanctions imposed by institutions against perpetrators of sexual violence have been too lax.

Despite the withdrawal of the 2011 DCL and the 2014 Q&A, many of the procedural requirements that institutions are required to follow in cases of sexual violence have been codified in law by the Violence Against Women Act Reauthorization in 2013 which amended the Clery Act, and have been implemented by the Department in the 2014 amendments to the Clery Act regulations.  Among other things, the Clery Act requires that in cases of dating violence, domestic violence, sexual assault and stalking that the institution describe the standard of evidence applied, list all possible sanctions that the institution may impose, and describe the range of protective measures available.  The Clery Act requires that any proceedings involving allegations of sexual violence are prompt, fair and impartial, conducted by officials who at a minimum receive annual training, provide the accuser and the accused with the same opportunities to have others present and be accompanied by an advisor of their choice, and provide simultaneous written notification of the results and any opportunity for appeal to both parties.

The Department has not yet announced when it will begin the rulemaking process.

For questions or assistance with a Title IX matter, please contact any of the Powers Education Group attorneys listed below.

Katherine Demedis (Email: Katherine.Demedis@powerslaw.com; Phone: 202.872.6773)

Sherry Gray (Email: Sherry.Gray@powerslaw.com; Phone 202-872-6778)

Stanley Freeman (Email: Stan.Freeman@powerslaw.com; Phone 202-872-6757)

Joel Rudnick (Email: Joel.Rudnick@powerslaw.com; Phone: 202-872-6763)

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