Department of Education withdraws 2011 and 2014 guidance on campus sexual assault; issues interim Dear Colleague Letter
On Sept. 22, 2017, the Department of Education withdrew its Dear Colleague Letter issued April 4, 2011, and the Questions and Answers (Q&A) on Title IX and Sexual Violence issued April 29, 2014. In the withdrawal letter, the Office for Civil Rights (OCR) criticized the prior administration for issuing the letter and Q&A without the appropriate public notice-and-comment period. In conjunction with the withdrawal letter, the Department of Education issued interim guidance in the Q&A on Campus Sexual Misconduct and plans to begin a public notice-and-comment period to “incorporate the insights of all parties” on the topic of schools’ Title IX responsibilities concerning complaints of sexual misconduct. The letter and Q&A indicated that the Office for Civil Rights will continue to rely on the Revised Sexual Harassment Guidance issued on Jan. 19, 2001, and the Dear Colleague Letter on Sexual Harassment issued Jan. 25, 2006, in assessing schools’ compliance with Title IX.
Key items addressed in the newly issued Q&A, which reiterated and clarified some aspects of previously issued Title IX guidance, include:
- Standard of proof – In investigating allegations of sexual misconduct, schools should use either a preponderance of evidence standard or a clear and convincing evidence standard; the standard used must be consistent with the standard of evidence used in other student misconduct cases. Previously issued Title IX guidance directed schools to use only a preponderance of the evidence standard.
- Rights of both parties – Rights or opportunities, including access to the investigation report and the opportunity to respond in advance of a hearing, must be offered to both parties during an investigation. Written notice must be provided to the responding party with sufficient details to allow for response, including the identities of the parties involved, the specific violation of the code of conduct, the conduct allegedly resulting in the violation, and the date and location of the incident.
- Alternative means of resolution – If both parties in a sexual misconduct complaint agree to participate in an informal resolution and the school determines the nature of the complaint is appropriate for such a resolution, the school may facilitate informal resolution, including mediation, to resolve the complaint.
- Application of interim measures – If the school determines it is appropriate to take interim measures (e.g., counseling, modifications of work and class schedules, leaves of absence) during the investigation of a complaint, the interim measures must be made available to both parties and not be applied in a manner that favors one party over the other.
- Time frame for resolution – There is no fixed time frame during which a school must complete an investigation; the Office for Civil Rights will assess schools’ good faith effort to conduct a fair and impartial investigation.
- Impartiality within adjudication process – Training materials for investigators and investigative techniques, as well as decision-making techniques used in the adjudication process, should not apply sex stereotypes or generalizations.
- Written notice of decision – The rationale for the decision made and any sanctions applied should be included in the notification to the complainant and respondent of the institution’s decision. Sanctions must be proportionate to the violation and consider the impact of separating a student from his or her education.
- Free speech protections – In resolving complaints of discrimination, rules must be applied such that the legal right to free speech is protected.
Colleges and universities continue to have a duty under Title IX of the Education Amendments of 1972 to protect students’ rights to equal education in an environment free from sexual misconduct and should ensure that existing Title IX processes comply with the interim guidance from the Department of Education. Institutions should monitor developments around this topic, including any future statements and guidance from Department of Education representatives and feedback gathered as part of the notice-and-comment process.
Proactive institutions continue to evaluate their existing procedures relative to the latest guidance to identify opportunities for improving compliance and streamlining processes. Baker Tilly works with schools via internal audits and consulting to address Title IX requirements and improve processes for Title IX administration.
For more information on this topic, or to learn how Baker Tilly higher education specialists can help, contact our team.