OCR Withdraws Significant Title IX Guidance; Issues New Dear Colleague Letter and Q&A on Title IX (CCD)

On September 22, 2017, the Department of Education issued a Dear Colleague Letter which withdrew guidance on Title IX previously provided by the Office of Civil Rights (“OCR”) (“2017 Dear Colleague Letter”). OCR utilizes “Dear Colleague” letters to help clarify how OCR will apply existing laws to schools, districts, and educational institutions of higher learning (hereinafter “schools”). The withdrawn guidance addressed investigations of Title IX complaints of student-on-student sexual violence. Simultaneously, OCR issued a Question and Answer on Campus Sexual Misconduct (“2017 Q&A”) to provide information regarding how OCR will evaluate a school’s compliance with Title IX under the new guidance.

LEGAL UPDATE

October 4, 2017

To:  Superintendents/Presidents/Chancellors, Member Community College Districts

From: Damara L. Moore, Senior Associate General Counsel and Ellie R. Austin, Schools Legal Counsel

Subject: OCR Withdraws Significant Title IX Guidance; Issues New Dear Colleague Letter and Q&A on Title IX

Memo No. 20-2017

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On September 22, 2017, the Department of Education issued a Dear Colleague Letter which withdrew guidance on Title IX previously provided by the Office of Civil Rights (“OCR”) (“2017 Dear Colleague Letter”).[1]  OCR utilizes “Dear Colleague” letters to help clarify how OCR will apply existing laws to schools, districts, and educational institutions of higher learning (hereinafter “schools”).  The withdrawn guidance addressed investigations of Title IX complaints of student-on-student sexual violence.  Simultaneously, OCR issued a Question and Answer on Campus Sexual Misconduct[2] (“2017 Q&A”) to provide information regarding how OCR will evaluate a school’s compliance with Title IX under the new guidance.[3]

Title IX applies to public and private elementary and secondary schools, school districts, colleges and universities receiving federal financial assistance.  It prohibits discrimination on the basis of sex, including sexual harassment, in federally funded education programs.[4]

 

       I.            The Withdrawn Guidance

 

The 2017 Dear Colleague Letter withdraws two documents issued by OCR under the Obama Administration: the 2011 Dear Colleague Letter on Sexual Violence (“2011 Dear Colleague Letter”) and the 2014 Questions and Answers on Title IX and Sexual Violence (“2014 Q&A”).  The former guidance was significant in that it specifically stated that sexual violence is a form of sexual harassment, and was thus prohibited under Title IX.  OCR stated that the reason for the withdrawal of the 2011 and 2014 guidance documents was that they did not adequately ensure that the due process rights of the responding party were protected.  Additionally, OCR took issue with the fact that the 2011 and 2014 guidance documents were adopted without notice and an opportunity for public comment.   

 

    II.            New Guidance

 

The 2017 Dear Colleague Letter explicitly refers schools to OCR’s 2001 Revised Sexual Harassment Guidance (“2001 Guidance”) and 2006 Dear Colleague Letter on Sexual Harassment[5] (“2006 Dear Colleague Letter”) to understand their continuing obligations to address sexual misconduct in education programs and activities.  The new guidance also discusses a number of other topics, including: interim measures, grievance procedures and investigations, informal resolutions of complaints, the decision-making process, notices of the outcome, the right to appeal, the Clery Act’s reporting requirements,[6] and the effect of the rescission of the former guidance on previously-entered voluntary resolution agreements. 

 

a.       What Is the Same

 

Much remains the same under the new guidance.  Schools continue to have a responsibility to promptly and effectively address sexual misconduct, prevent its recurrence, and remedy its effects.[7]   Schools continue to have an obligation to designate a Title IX coordinator to ensure they are meeting their Title IX obligations.  The new guidance affirms that schools are deemed to have notice of sexual misconduct when a “responsible employee” knows or should know of such conduct.[8]   Schools must still adopt grievance procedures to address sexual misconduct.  When conducting an investigation, schools have the burden to gather evidence and conduct a fair, impartial investigation.  The current guidance, like the previous guidance, acknowledges that during the period of time that adjudication is pending, interim steps may be taken to separate the reporting and responding parties.  The new guidance continues to recognize that schools may need to address issues which arise due to off-campus misconduct if it creates a hostile educational environment in educational programs or activities.  When addressing allegations of dating violence, domestic violence, sexual assault, or stalking, community colleges must continue to comply with Title IX and the Clery Act.

 

As under the previous guidance, each party is entitled to access the same processes and information as the other party during the school’s investigation.  In disciplinary proceedings relating to allegations of dating violence, domestic violence, sexual assault, or stalking, schools may not limit the presence of an advisor to either party during a hearing, although they may limit restrictions on advocates’ participation.

 

 

b.      What Is Different

 

This Legal Update highlights many of the changes that are made by the new guidance, but is not a comprehensive list of all changes.

 

Timeframe.  Title IX investigations no longer must be concluded within 60 calendar days.  Instead, the guidance provides that “[t]here is no fixed time frame under which a school must complete” its investigation.  OCR will now evaluate on a case-by-case basis a “school’s good faith effort to conduct a fair, impartial investigation in a timely manner.”

 

Interim Remedies.  The 2017 Q&A provides that interim measures might be appropriate for either the reporting or the responding parties prior to an investigation or while an investigation is pending.  This is a departure from previous OCR guidance, where interim measures were offered only to the reporting party.

 

Standard of Evidence.  Significantly, the 2017 Q&A provides that schools may apply either the preponderance of the evidence standard or the clear and convincing evidence standard.  The clear and convincing evidence standard represents a higher standard of proof, somewhere in between preponderance of the evidence and beyond a reasonable doubt.  Previous guidance provided that all Title IX investigations must proceed using the preponderance of the evidence standard.  The new guidance also requires that the standard of proof utilized for evaluating a claim of sexual misconduct be consistent with the standard that applies in other student misconduct cases.  In other words, a school cannot use the preponderance of the evidence standard in sexual misconduct cases but the clear and convincing evidence standard in plagiarism cases.

 

Informal Resolution for Allegations of Sexual Assault.  Previous Title IX guidance provided that allegations of sexual assault could not be resolved using an informal mediation process, even if both the reporting and responding parties agreed.  The new guidance allows schools to facilitate voluntary resolution processes, such as mediation, for any Title IX complaint, including those involving allegations of sexual assault.

 

Rights During Decision Making Process.  The new guidance makes explicit the requirement that both the reporting and responding parties have access to any information that will be used during informal and formal disciplinary meetings and hearings, including the investigation report, and provides that the responding party must have the opportunity to respond to the report in writing in advance of any decision about responsibility and/or hearing.

 

Notice of Outcome of Disciplinary Proceedings.  The new guidance provides that a “written notice of the outcome of disciplinary proceedings” must be provided to both the reporting and responding parties, and recommends that both parties be notified “concurrently.” For elementary and secondary schools and for allegations at the postsecondary level that do not involve Clery crimes,[9] the notice must inform the reporting party whether the investigation found that the alleged conduct occurred, any individual remedies offered to the reporting party, any sanctions imposed on the responding party that relate directly to the reporting party, and other steps the school has taken to eliminate the hostile environment.  In elementary and secondary schools, the notice should be provided to the parents of students under 18 and directly to students who are 18 or older.

 

Obligation to Produce Written Report.  The 2017 guidance mandates that any investigation under Title IX that may lead to disciplinary action against the responding party must result in a written investigation report “summarizing the relevant exculpatory and inculpatory evidence.”

 

Right to Cross-Examine.  The 2017 guidance makes clear that if one party is permitted to cross-examine the other party, that right must extend to the other party. 

 

Right to Appeal.  Under the former guidance, if a school granted a right to appeal investigation findings, the school was required to allow both parties the right to appeal.  Under the new guidance, if a school chooses to allow appeals from either its decision regarding responsibility or its disciplinary sanctions, it may choose to allow an appeal only for the responding party or for both parties.

 

 III.            Impact

 

Despite the withdrawal of two major guidance documents, the majority of schools’ Title IX obligations remain intact.  Many other advisory letters and guides related to sex discrimination and harassment remain in place,[10] and can assist schools in understanding their continuing obligations under Title IX.

 

However, with the increased focus by OCR on the responding party’s due process rights, schools should examine their policies and practices to ensure they provide due process to those under investigation for sexual misconduct.  Schools may also reconsider and heighten the standard of proof they believe is appropriate in such investigations.  Counsel should be consulted to ensure any new policies are in alignment with the changes in the law.    

 

Additionally, the 2017 Q&A provides that voluntary resolution agreements previously entered into between a school and OCR remain binding on the school.

 

OCR has indicated that it will engage in rulemaking after a public comment process.  This will allow schools the ability to provide input into the development of new regulations related to Title IX’s requirements for investigating student-on-student sexual misconduct.  The Department of Education has not released any dates for the public comment period as of the time of publication of this Legal Update; however, we will keep our clients updated on this developing issue.

 

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

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