On September 22, 2017, the United States Department of Education issued new interim guidance applicable to colleges, universities, and school districts pertaining to Title IX and the process for handling allegations of sexual misconduct. This follows United States Secretary of Education Betsy DeVos’ earlier indication that the Department of Education would be rescinding the Obama-era Title IX guidance in favor of developing new regulations on the subject after accepting comments from the public. The new interim document, in the form of a “Q&A on Campus Sexual Misconduct,” takes effect immediately, but does not affect any existing resolution agreements between schools and the Office for Civil Rights (OCR).

At the same time the new interim guidance was issued, the Department withdrew the Dear Colleague Letter on sexual violence dated April 4, 2011, along with the Questions and Answers on Title IX Sexual Violence dated April 29, 2014. The April 24, 2015 Dear Colleague letter, outlining information about Title IX Coordinators, does remain in effect.

The interim guidance does require an equitable investigation of a Title IX complaint by a “trained investigator” and maintains the requirement of a Title IX Coordinator. However, the interim guidance illustrates a change of approach by the Department on a few key provisions. First, the interim guidance eliminates a “fixed time” requirement in order for an investigation to be considered “prompt.”  Investigations are no longer required to be completed within 60 days as previously required. The guidance notes that “OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.” Accordingly, institutions should still conduct investigations promptly, given the circumstances.

Second, institutions may now determine the standard of proof used in disciplinary investigations and proceedings for allegations of sexual misconduct. Previously, the preponderance of evidence standard was required — meaning that an allegation of sexual misconduct only needed “more likely than not” to have occurred to warrant disciplinary action. The interim guidance now allows an institution to choose either the “preponderance of the evidence” standard or the higher standard of “clear and convincing evidence.” The standard selected by the institution for allegations of sexual misconduct must be the same as the standard applied in other student misconduct cases. Also, the standard to be applied must be published in the school’s annual security report.

With respect to mediation, the Obama-era guidance had provided that mediation was not appropriate “even on a voluntary basis.”  Under the new guidance, if all parties voluntarily agree to participate in an informal resolution that does not involve a full investigation and adjudication, after having received a full disclosure of the allegations and their options for formal resolution, colleges and universities may facilitate an informal resolution, including mediation, to reach resolution.

For appeals, the old guidance encouraged colleges and universities to have an appeal process and to make it available to both parties.  Under the new guidance, colleges and universities are not required to allow appeals.  If the school chooses to allow appeals from its decisions regarding responsibility and/or disciplinary sanctions, the school may choose to allow appeal “(i) solely by the responding party; or (ii) by both parties, in which case any appeal procedures must be equally available to both parties.”

The harshest critics of the Obama-era guidance note that the previous guidance protected survivors of sexual assault at the expense of the accused. Supporters of the prior guidance argue that rolling back the guidance will water down hard-won protections for survivors.  The Department’s proposed rules on the subject, expected in the coming months, will further clarify  the Department’s vision for the process going forward.

For now, colleges, universities, and school districts should consider whether broad sweeping changes to their policies are desired or necessary. The decision to make changes will likely be impacted by budgetary and operational considerations. As previously noted, those institutions subject to a resolution agreement with OCR are bound by those agreements. Finally, college and university leadership should keep in mind that state-specific guidance may also supplement the existing federal guidance and be more stringent. For example, New York State has its own requirements for addressing sexual assault under New York Education Law Article 129-B, including language on the standard of proof (preponderance of the evidence) in investigations. California also has more stringent requirements.

If you have questions regarding Title IX compliance, please contact:

• Kristin Klein Wheaton
• Or another member of our Higher Education team.