It has been over two months since the federal District Court’s July 28, 2021 decision in Victim Rights Law Center et al v. Cardona vacating the section of the United States Department of Education’s 2020 Title IX Final Rule that precluded postsecondary institutions from considering any statement made by a party or witness who does not submit to cross examination at a live adjudicatory hearing. Since the decision, institutions have sought to assess its impact on their processes for adjudicating allegations of sexual harassment, including the possibility of changes to eliminate this preclusion requirement from their procedures.

Read More >> Assessing the Evolving Impact of Victim Rights Law Center et al v. Cardona on College and University Title IX Procedures

On May 6, 2020, the U.S. Department of Education (DOE) issued new Title IX regulations which imposed significant changes in the way in which colleges and universities must investigate and adjudicate sexual assault cases. The revised Title IX regulations have an effective date of August 14, 2020. On August 5, 2020, the DOE’s Office for Civil Rights (OCR) announced that the new regulations do not apply to institutional responses to sexual assaults that allegedly occurred prior to August 14 relying on the preamble to the regulations. Despite OCR’s seemingly clear position on retroactivity, a recent federal court case out of the Northern District of New York raises new questions as to whether and when the new Title IX rules must be applied retroactively to cases preceding their effective date. 

Read More >> Court Issues Preliminary Injunction Against Institution That Declined to Apply New Title IX Regulations Retroactively 

The new Title IX rule, which became effective August 14, 2020, has garnered much attention in the higher education community over the summer. Many schools have scrambled to put new policies in place and to adequately resource and train staff for new responsibilities. For New York institutions, it is important to remember that schools also have requirements under the New York’s Enough is Enough law.

Importantly, Enough is Enough (New York Education Law Article 129-B) requires colleges and universities to submit annually aggregate data on reported incidents of sexual violence and their adjudication and handling.

In 2017, the New York State Board of Regents adopted regulations for reporting this information. A link to those regulations is provided below. Reports were due last year for calendar year 2018 so institutions should have familiarity with compiling and filing this Aggregate Data Report.

The October 1, 2020 deadline for calendar year 2019 reports is fast approaching. Any institution of higher education who has not yet submitted its 2019 Aggregate Data Report should attend to finalizing it and submitting the Report by the October 1 deadline. The Report should be submitted electronically.

Helpful links are provided below.

• Link  to Registration
• Link to FAQs on Aggregate Data Report
• Link to Electronic Filing Instructions

If you have any questions about the information presented here, please contact any attorney in Bond’s Higher Education practice, or the attorney in the firm with whom you are regularly in contact.

Sexual assaults on college campuses are an issue to be taken seriously. Colleges and universities are well aware of their responsibility under Title IX to address and remediate sexual abuse; but with that responsibility comes an obligation to identify unsubstantiated claims. To fulfill these obligations, colleges have enacted comprehensive anti-harassment and sexual misconduct policies, conducted training and promulgated adjudicatory procedures that serve to provide protection and redress for victims of sexual assault, while ensuring that those accused of sexual assault are provided with fair protections from unsubstantiated allegations. 

Read More >> Sixth Circuit Loosens Pleading Standard for Title IX Wrongful Outcome Cases

On May 6, the U.S. Department of Education (Department) released final regulations under Title IX. These regulations significantly change how higher education institutions, and to a lesser extent, school districts, must respond to sexual assault and harassment on campus. 

Read More >> State Attorneys General Bring Challenges Against New Title IX Regulations

On Wednesday, May 6, the U.S. Department of Education (USDOE) released final regulations under Title IX. These regulations come after the USDOE sifted through over 124,000 comments during the public comment period. The new regulations focus on how colleges and universities must investigate and adjudicate sexual misconduct cases under Title IX. 

Read More >> Final Title IX Regulations Released

The ongoing COVID-19 pandemic has presented new challenges for college administrators as they evaluate whether to continue Title IX investigations through telephone and video conferences or postpone interviews and hearings until “stay at home” orders are withdrawn by state and local governments. 

If Title IX investigations are postponed, victims of alleged sexual misconduct on campuses may sustain prolonged trauma. On the other hand, students accused of wrongdoing may be at a disadvantage if cases proceed through telephone or videoconferences. The mounting uncertainty created by the coronavirus pandemic poses unique scenarios for institutions committed to prompt and equitable resolution of complaints. 

Read More >> Federal Courts Weigh In: Title IX Proceedings During COVID-19

On November 16, 2018, more than a year after rescinding Obama administration era Title IX subregulatory guidance on colleges’ and universities’ obligations under Title IX, the United States Department of Education published its long-awaited proposed Title IX regulations. The proposed regulations will likely be viewed by institutions as a mixed bag. On the one hand, the regulations promise a narrower scope of enforcement and greater deference to institutional decisions. On the other hand, notwithstanding Secretary of Education Betsy DeVos’s assertions that the prior administration had inappropriately imposed highly technical and overly-stringent compliance obligations on colleges and universities, the proposed regulations would legislate significantly in this area, mandating detailed new processes, many of which are arguably beyond the Department’s discretion to require and some of which may create conflicts with the requirements of state laws such as New York Education Law Article 129-B. The following are some of the most noteworthy provisions.

Read More >> Proposed Title IX Regulations Would Necessitate Extensive Changes to Institutional Policies and Practices

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.

Many institutions are reporting receipt of a letter dated June 26, 2017 from the New York Office of Campus Safety with an attached Notice of Audit (“Notice”) pursuant to New York Education Law Article 129-B (N.Y. Educ. Law §§ 6439–6449). The Notice seeks data submissions relating to the provision of Article 129-B and it includes 23 separate requests for information and documentation.  The response to the Notice must be postmarked no later than July 7, 2017.

This audit comes at a time when key institutional personnel, including student affairs professionals, are away from the office on vacation and some institutions are closed. In addition, the short turnaround requested (fewer than 10 calendar days over a major holiday weekend) gives very little time to gather the responsive materials, let alone review and redact them if necessary. The time period is far less than what is required to respond to a discovery demand under the New York Civil Practice Law and Rules.

We believe that it is unclear whether FERPA permits the release of personally identifiable student information to the New York Office of Campus Safety, which is an office of the New York Division of Criminal Justice Services and not an office of an education agency.

The Audit Request

The statute at § 6449 provides only for the collection of aggregate data, consistent with the statute’s emphasis on confidentiality and respect for the privacy of those involved in the process. Section 6449(3) emphasizes that, even when collecting aggregate information “the department shall not release the information, as provided for in this section, if it would compromise the confidentiality of reporting individuals or any other party….”

Eleven of the 13 requests in the Notice contain statutory references to the applicable section of Article 129-B as authority for the requested data. Two of the requests, numbers 9 and 10, contain no reference to the statute and there does not appear to be any specific section of the statute that supports the sensitive nature of the data sought in requests 9 and 10. Additionally, request number 4 seeks copies of all “no contact orders” issued by the institution, although there does not appear to be a statutory basis for such a request. Number 6(a) seeks data on all students subject to interim suspension, although that request also appears to be beyond the scope of the referenced statutory section.

Compliance Next Steps

Notwithstanding the unrealistic time frame to respond to the audit requests and credible questions about the statutory basis for specific requests, institutions must begin to prepare a response. 

Request an Extension

We encourage institutions that do not anticipate that they will be able to comply with the aforementioned deadline to contact Deputy Director Stacey Hamilton by telephone to request an extension and follow up with a written request and/or confirmation.

Prepare Materials for Submission 

Institutions should plan to submit easily accessible data such as policies, blank forms, website material by July 7, 2017, or the extended deadline, and include a cover letter indicating that, where applicable, additional materials will follow as soon as possible. In that cover letter, the institution may articulate the factors, if applicable, that make it difficult to respond within the narrow time frame allotted. One of those factors may be that the materials have to be carefully reviewed in order to redact confidential information in accordance with the privacy considerations emphasized in Article 129-B and other privacy laws.

We suggest that with regard to request numbers 1, 2, 3, 5, 6(b), 7, 8, 11, 12 and 13, institutions collect the documents and data developed over the past academic year (Fall 2016 to Spring 2017). Note that for request number 12 regarding campus climate assessments, institutions should exercise care when preparing a response to prevent the identification of any particular student.

Concerns with Respect to Disclosure

Request number 4 asks for information and documents regarding each request for a “no contact order” received by the institution. Institutions may decide to provide a copy of the institution’s template “no contact order” language, rather than specific orders, together with data on the number of orders issued and the number of orders that were changed. Although the New York State Office of Campus Safety appears to be seeking copies of specific “no contact orders” that include the names of the students, it is unclear that they have the right to this personally identifiable information under FERPA.

Similar consideration applies to request number 6(a). It may be acceptable in the initial response to provide aggregate data on interim suspensions and not data that could identify a specific student. In light of the statute’s emphasis on confidentiality and privacy, and the fact that the statute refers to aggregate data, the Office of Campus Safety may not have the authority to receive personally identifiable information.

A separate issue is the scope of request numbers 9 and 10, which seek an academic year’s worth of records relating to all reports of incidents covered by Article 129-B and all records involving misconduct hearings covered by Article 129-B. These requests are overly broad, are seriously inconsistent with the statute’s emphasis on confidentiality and privacy, and are not in accord with the statute’s authorization to collect aggregate data. Institutions should be consistent in the documentation provided for each case and should make sure information does not contain personally identifiable information about students while this issue remains unresolved.

In a letter to the Office of Campus Safety dated June 29, 2017, the Commission on Independent Colleges & Universities in New York (CICU) has raised the question of redacting personal information pertaining to students.

If you have questions please contact a member of our Higher Education Group.

Apparently prompted by allegations from students and advocates, New York Governor Andrew Cuomo is reportedly directing an audit, to be conducted by representatives from the New York State Department of Education, Department of Health, Office of Victim Services and State Police, of institutions’ compliance with Education Law Article 129-B, the so-called “Enough is Enough” campus sexual violence legislation. According to published reports, between now and September 1, the audit would review institutional policies and websites to determine compliance with, among other things, the statutory requirements for adoption of policies and disclosures to students.  A second phase would then examine institutions’ handling of individual cases. The precise details of these reviews are as yet unknown, but the second phase has the potential to equal or exceed, in scope and depth, reviews conducted by the Office for Civil Rights of the United States Department of Education under Title IX. OCR reviews are, of course, typically prompted by individual complaints.  By contrast, the Governor’s audit program, if it proceeds as reported, would apparently target all colleges and universities in New York State, essentially subjecting them to a similar process even in the absence of particular concerns or complaints. Pursuant to Education Law Section 6440(3), the Education Department had previously indicated its intent to conduct “random audits, at any time after September 1, 2016” to monitor compliance with the statutory requirements.  This initiative, however, appears to be more comprehensive in terms of its coverage of institutions throughout the State, seemingly in conflict with the statutory dictate that audits be conducted “by random selection.” Needless to say, the roll-out and implementation of this initiative bear watching.

On October 28, 2016 the United States Supreme Court agreed to review the Fourth Circuit’s decision in Gloucester County School Board v. G.G. This case is about whether a Virginia School Board’s policy limiting students’ bathroom access to facilities that correspond to students’ biological gender is discriminatory. The case was brought by the ACLU, on behalf of transgender student G.G., alleging the School Board’s policy violates G.G.’s rights under the Constitution’s Equal Protection Clause and Title IX of the Education Amendments of 1972, and is inconsistent with U.S. Department of Education Office for Civil Rights (OCR) guidance stating that school districts should treat students consistent with their gender identities. While the Fourth Circuit held that OCR guidance, while not law, deserved deference on this issue it stopped short of holding that the School Board’s policy violates Title IX’s protections against sex discrimination.  On August 29, 2016, the School Board petitioned the Supreme Court for review. In response the Supreme Court stayed the Fourth Circuit’s decision, thus keeping the School Board’s policy in place while it considered whether it would review the case. A decision by the Supreme Court here will not just determine whether this Virginia school board’s policy violates federal civil rights laws. A decision will impact similar transgender policies, laws, and cases under scrutiny in North Carolina, Texas, and elsewhere. This case is further meaningful for the education community as it may provide clarity on the scope of Title IX’s sex discrimination protections and the appropriate weight to afford OCR interpretation of Title IX and other statutes. For more background on Gloucester County School Board v. G.G. see our previous post here.