On September 22, 2017, U.S. Department of Education’s Acting Assistant Secretary for Civil Rights, Candice Jackson, withdrew the “Dear Colleague Letter on Sexual Violence,” dated April 4, 2011, and the “Questions and Answers on Title IX and Sexual Violence,” dated April 29, 2014.

These documents relate to the procedures for investigating, adjudicating, and resolving allegations of sexual misconduct in schools that receive federal funds.

As grounds for withdrawal, Assistant Secretary Jackson’s letter withdrawing the 2011 and 2014 guidance lists due process concerns voiced by legal commentators and advocates for the accused.  

Specifically, the Office for Civil Rights stated:

• The 2011 Guidance required a minimal preponderance of the evidence standard of proof even though many schools had traditionally employed a higher clear and convincing evidence standard.
• The 2011 Guidance required schools with an appeals process allow appeals of not guilty findings.
• The 2011 Guidance discouraged cross examination and forbade schools from relying on law enforcement to resolve disputes.
• The 2011 Guidance provided that any due process protections afforded to accused students should not “unnecessarily delay” resolving the charges against them.
• The Department quoted Harvard Law School professors in stating that many schools established procedures for resolving allegations that “lacked the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”

Friday’s letter stated that the Department “imposed these regulatory burdens without affording notice and the opportunity for public comment” and stated that a new policy will be implemented through a rulemaking process that responds to public comment.

In the meantime, the Department refers stakeholders to the Q&A on Campus Sexual Misconduct and the Revised Sexual Harassment Guidance issued January 25, 2006.

Despite the withdrawal, the Office for Civil Rights stated that it “remains committed to enforcing these critical protections and intends to do so with its mission under Title IX to protect fair and equitable access to education.”

Read Friday’s letter here.

In the guidance accompanying Friday’s letter, the Department states that schools are still required to follow Title IX and related legislation.  Specifically, the new guidance issued Friday states that covered schools must continue to designate a Title IX officer and are still subject to the reporting requirements of the Clery Act and the Violence Against Women Reauthorization Act of 2013.  Schools are still required to adopt and publish grievance procedures and have the burden to gather sufficient evidence to reach a fair, impartial determination through trained investigators.  The new guidance also states that existing resolution agreements between OCR and schools are still in effect.

Stay tuned for more updates on changes in Title IX enforcement in the near future.