In a move that was foreshadowed by statements from the new administration, by letter dated September 22, 2017, the U.S. Education Department, Office for Civil Rights (“OCR”) announced the withdrawal of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence. OCR will no longer rely on these documents in the enforcement of Title IX cases. As reasons for this action, the Education Department cited concerns that the 2011 and 2014 guidance documents led to “deprivation of rights” for students and that the Department had not followed a formal public notice and comment process before issuing the 2011 and 2014 guidance documents.
New September 2017 Question & Answer Document Issued
In place of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence, the Department issued a new question and answer document – the September 2017 Q&A on Campus Sexual Misconduct – to guide institutions while the Department conducts an official rulemaking process to promulgate new Title IX regulations. This new Q&A relies in large part on the 2001 Revised Sexual Harassment Guidance and the January 25, 2006 Dear Colleague Letter on Sexual Harassment.
The most notable changes reflected in the newly-issued 2017 Q&A on Campus Sexual Misconduct include:
- The Department has withdrawn its expectation that investigations will be completed within 60 days. Investigations must be “prompt,” but there is no specific expected timeframe for completion. See Question 5.
- The Department has retracted its position that only a “preponderance of evidence” standard may be used in sexual harassment and sexual violence cases. Instead, the standard of proof for finding a violation in sexual misconduct cases should be consistent with the standard the institution uses in other types of student misconduct cases, which may be either a “preponderance of evidence” standard or a “clear and convincing evidence” standard. See Question 8, fn. 19.
- The Department emphasizes the importance of impartiality, saying that “institutional interests” must not interfere with the impartiality of investigations. Investigators are to be “trained” and “free of actual or reasonably perceived conflicts of interest and biases for or against any party.” See Question 6. If institutions do not already provide an opportunity for parties to raise objections to investigators or other decision-makers, it may be advisable to include such an opportunity.
- In withdrawing the 2014 Q&A, the Department has retracted its previous list of topics on which investigators and adjudicators must be trained. In its place, the Department cautions against “training materials or investigative techniques and approaches that apply sex stereotypes or generalizations.” See Question 6. Similarly, the Department announces that decision-makers must approach cases “objectively and impartially” and may not employ or rely on “sex stereotypes or generalizations.” See Question 8. Institutions should review training provided to investigators and adjudicators to ensure compliance with this aspect of the guidance.
- The Department retracted its prohibition on mediation in sexual violence cases. The Department’s newly announced position is that mediation and other forms of informal resolution may be used to resolve any Title IX complaint if both parties voluntarily agree to participate. See Question 7.
- The Department discourages any restriction on the ability of either party to discuss an investigation, stating that such a restriction is likely inequitable and may impede parties’ ability to gather and present evidence. See Question 6.
- The Department has announced that the investigation should result in a written report summarizing both “the relevant exculpatory and inculpatory evidence”, that the parties should be provided “equal access” to this information, and that they should have the opportunity to respond to the report in writing and/or at a hearing prior to a determination of responsibility. See Question 6.
- In determining interim measures, a school “may not rely on fixed rules or operating assumptions that favor one party over another.” However, the Department also notes that, in cases of sexual assault, dating violence, domestic violence and stalking, colleges and universities continue to have obligations under the Clery Act to provide reasonably available interim measures to a reporting party who requests such measures. See Question 3.
- The Department has reversed its previous position that, if an opportunity for appeal is afforded to one party, it must be provided to both parties. Now, institutions may restrict the right to appeal to responding parties only. See Question 11.
What this Means for Institutions
It is doubtful that the Department’s change of position will require institutions to wholly revamp their Title IX policies and procedures. For the most past, the new guidance does not disallow institutions from continuing current practices if the institution wishes to do so, and in fact some of those practices and procedures continue to be required by the Violence Against Women’s Act amendments to the Clery Act.
One notable exception is the standard of evidence. If an institution uses the higher standard of clear and convincing evidence in other student misconduct cases, the institution will need to consider the need to either change the standard of evidence in those other cases to a preponderance of evidence standard or change the standard applicable to sexual harassment and sexual assault cases. Also, if institutions do not currently allow parties access to the investigative file, they will need to ensure that this access is incorporated into their procedures going forward. Relatedly, the requirement that the parties have an opportunity to respond to a written investigative report prior to a determination of responsibility may necessitate refinements to some processes that utilize an “investigator model” for determinations of responsibility, as well as processes that use a formal hearing to consider evidence other than in “report” form.
More generally, the new guidance places a renewed focus on impartiality. All institutions would do well to review their policies, procedures and personnel involved in the process with an eye on this issue.
State Law Requirements
In addition to the federal requirements impacted by OCR’s new guidance, some states have enacted laws on the topic of response to sexual violence. For instance, New York State’s “Enough is Enough” Law imposes a fairly full panoply of institutional requirements with respect to sexual assault, dating violence, domestic violence and stalking, and New York colleges and universities must continue to comply with this state law despite the U.S. Department of Education’s lessening of its regulatory requirements. Generally, New York State’s requirements are not in conflict with the Department’s newly-issued positions as articulated in the 2017 Q&A on Campus Sexual Misconduct. Perhaps the most notable potential exception is with respect to interim measures. New York State law seems to require a formulaic no-contact order that imposes on the responding party the obligation to “leave the area immediately” if in a public place with the reporting party, whereas the Department’s newly announced position is that interim measures “may not rely on fixed rules or operating assumptions that favor one party over another.” Whether and how these two directives can be reconciled will require further consideration and analysis.
The Department’s announcement makes clear that this is not necessarily the last change it will make with respect to schools and their Title IX obligations.
If you have questions about how the September 22, 2017 DCL or Q&A on Campus Sexual Misconduct impacts your current policies and procedures please reach out to our Higher Education Practice group.