Summary

On September 22, 2017, the Department of Education’s Office of Civil Rights (“OCR”) withdrew the 2011 Dear Colleague Letter (“DCL”) [http://bit.ly/2jR2JyX] and the 2014 Questions and Answers on Title IX and Sexual Violence (“Q&A”) guidance documents.  In its withdrawal letter, OCR criticized the 2011/2014 guidance documents for creating “a confusing and counterproductive set of regulatory mandates” on institutions leading to the “deprivation of rights for many students.”  OCR also criticized the prior administration’s failure to provide notice and the opportunity for public comment in creating the 2011 and 2014 guidance.

In conjunction with its letter, OCR issued a Q&A on Campus Sexual Misconduct [http://bit.ly/2xWwAMA]. Below are some highlights from the new Q&A.  Keep an eye out for a more detailed analysis.

• Schools may apply either a preponderance of the evidence standard or a clear and convincing evidence standard.  But the standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases.  According to OCR, “when a school applies special procedures in sexual misconduct cases, it suggests a discriminatory purpose and should be avoided.”
• If all parties voluntarily agree to participate in an informal resolution after receiving a full disclosure of the allegations and their options for formal resolution and if a school determines that the particular Title IX complaint is appropriate for such a process, the school may facilitate an informal resolution, including mediation, to assist the parties in reaching a voluntary resolution.
• In assessing the need for a party to receive 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.
• There is no fixed time frame under which a school must complete a Title IX investigation.
• Once a school decides to open an investigation that may lead to disciplinary action against the responding party, a school should provide written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview. Sufficient details include 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.
• The decision-maker(s) must offer each party the same meaningful access to any information that will be used during informal and formal disciplinary meetings and hearings, including the investigation report. The parties should have the opportunity to respond to the report in writing in advance of the decision of responsibility and/or at a live hearing to decide responsibility.
• If a school chooses to allow appeals from its decisions regarding responsibility and/or disciplinary sanctions, the school may choose to allow appeal (i) solely by the responding party; or (ii) by both parties, in which case any appeal procedures must be equally available to both parties.
• Existing resolution agreements remain binding upon the schools that voluntarily entered into them.