New OCR Title IX Dear Colleague Letter Withdraws Obama Era Guidance

[co-author: John Swinney]

Late last week, Secretary of Education Betsy DeVos announced the intention of the Department of Education to overhaul the way it addressed sexual misconduct on college and university campuses, as well as in K-12 schools. As we previously noted, DeVos’s recent public remarks shed little light on what the Department’s Office of Civil Rights (OCR) would recommend or require. The OCR’s plans became clearer last Friday with the issuance of a new Dear Colleague Letter and related Questions and Answers (Q&A) document.

DEAR COLLEAGUE LETTER

In its September 22 Dear Colleague Letter (DCL), available here, the OCR announced that it is withdrawing the policy statements and guidance provided in its April 2011 Dear Colleague Letter and 2014 Questions and Answers document. The new DCL describes the 2011 and 2014 guidance documents as interpreting Title IX “to impose new mandates” regarding how educational institutions address allegations of student-on-student misconduct. The new DCL also includes the broad conclusion that “those documents have led to the deprivation of rights” for both “accused students” and “victims.” Note, however, that the recent DCL does not withdraw the OCR’s 2015 Dear Colleague Letter regarding Title IX Coordinators and related Title IX Resource Guide, both available here. Although the recent DCL cites a return to the OCR’s 2001 Revised Sexual Harassment Guidance (2001 Guidance), available here, to guide its enforcement efforts, the recent DCL also identifies various topics that are likely to be the subject of the forthcoming notice-and-comment process that will be utilized to formulate additional OCR guidance regarding Title IX.

For example, the new DCL notes that the withdrawn 2011 and 2014 guidance documents:

• Required schools to use the “preponderance of the evidence” standard – described in the recent DCL as “a minimal standard of proof” – even though the OCR states that many schools had traditionally used the higher “clear and convincing evidence standard.”
• Discouraged cross-examination by the parties and suggested that permitting it might violate Title IX.
• Insisted that schools with an appeals process allow complainants to appeal findings of non-responsibility, even though the OCR states that many schools had previously only afforded accused students the right to appeal.
• Forbade schools from relying on investigations of criminal conduct by law enforcement authorities to resolve Title IX complaints, which the OCR states forced schools to establish “policing and judicial systems” while being under pressure to resolve complaints on an expedited basis.
• Provided that due process protections afforded to accused students should not “unnecessarily delay” resolving Title IX complaints against them.

Although the recent DCL does not provide any permanent guidance on Title IX, it does include an accompanying Q&A document, described below, that offers some important guidance for schools to consider between now and the time when additional guidance is issued following the anticipated notice-and-comment process.

Q&A DOCUMENT

The Q&A document, available here, addresses twelve questions regarding the effect of the OCR’s withdrawal of the 2011 and 2014 guidance documents and provides information about how the OCR will assess a school’s compliance under Title IX going forward – or at least until additional guidance is issued. Some of the information in the Q&A document recites or confirms well-established principles. Other information in the document indicates a departure from the 2011 and 2014 guidance – or at least a departure from how that guidance was being enforced by the OCR. For example, the recent Q&A document:

• Confirms the obligation of a school to address sexual misconduct in a prompt, equitable, and impartial manner when a school knows or reasonably should know of an incident of sexual misconduct and to respond to conduct that creates a sexually hostile environment.
• Emphasizes the core obligations that schools must satisfy under Title IX, including the designation of a Title IX coordinator; the adoption of grievance procedures that provide for a prompt and equitable resolution of complaints; the adequate, reliable, and impartial investigation and resolution of complaints; the obligation to notify both parties of the outcome of a complaint; and the obligation to take steps to stop any sexual harassment, prevent the recurrence of such harassment, and remedy its effects.
• Affirms that higher education institutions must comply both with the Clery Act, as amended by the Violence Against Women Reauthorization Act, and Title IX.
• Permits schools to apply either a “preponderance of the evidence” or a “clear and convincing evidence” standard to sexual misconduct cases, so long as the standard is consistent with the standard the school applies in other student misconduct cases (and is consistent with any applicable state laws).
• Allows schools to facilitate an informal resolution, including mediation, to reach a voluntary resolution of a Title IX complaint when schools determine that a particular complaint is appropriate for such a process and the parties agree to participate (but note that the 2001 Guidance, which the OCR has affirmed, states that “[i]n some cases, such as alleged sexual assaults, mediation will not be appropriate even on a voluntary basis”).
• States that interim measures should be considered on an individualized basis for both parties in a way that makes every effort to avoid depriving any student of his or her education (unlike earlier guidance, the recent Q&A document does not state that interim measures should be implemented in a way that minimizes the burden on the complaining party).
• States that there is no fixed time frame for completing an investigation (as compared to the 60-day time frame referenced in the 2011 and 2014 guidance).
• Notes that institutions can resolve Title IX complaints with or without a hearing, but in either event, must make findings of fact and conclusions on the issue of responsibility for each allegation of sexual misconduct.
• Requires schools to provide written notice to the accused party of the allegations of any sexual misconduct complaint that contains sufficient details – including 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 provides sufficient time to prepare a response prior to any initial interview regarding the complaint.
• Discusses the importance of producing a written report summarizing both the relevant inculpatory and exculpatory evidence and allowing both parties to respond to the report in writing in advance of a decision on the issue of responsibility and/or at a live hearing that is held to decide responsibility.
• States that the decision-maker who decides on any sanctions may be the same as or different from the decision-maker who made a finding regarding whether a policy violation occurred.
• Emphasizes the importance of considering the impact of separating a student from her or his education in deciding on sanctions and ensuring that any sanctions are proportionate to the policy violation.
• Identifies the differences in the notice of the outcome of the investigation that is required to be provided to parties depending on the nature of the complaint and the type of institution (i.e., higher education or K-12) involved.
• Permits schools to provide appeal rights to both parties or solely to the accused party (but note that state law might require a different approach).
• Raises questions about the extent to which schools are obligated under Title IX to address incidents of alleged sexual violence that occur off-campus.

Going forward, K-12 schools and higher education institutions should refer to the 2001 Guidance (above) and the September 22 Q&A document when responding to reports or complaints of sexual misconduct and assessing their compliance under Title IX. In light of the new guidance from OCR, schools should review their existing policies and procedures and how they are implemented to ensure compliance with Title IX.  Schools should also ensure that, in doing so, they also remain in compliance with any obligations under other applicable federal or state laws. For example, higher education institutions must continue to comply with the Violence Against Women Reauthorization Act, and such institutions in Illinois must also comply with the Illinois Preventing Sexual Violence in Higher Education Act.  

We will continue to monitor the OCR’s activity in the area of Title IX compliance and enforcement with regard to sexual misconduct and provide updates as they become available.