The Department of Education's (DOE) issuance of a new Dear Colleague Letter (2017 DCL) and corresponding Q&A regarding Title IX enforcement (New Interim Guidance) rescinds the prior 2011 Dear Colleague Letter and the 2014 Q&A on the same topic, and grants institutions covered under Title IX (Title IX Institutions) greater flexibility in fashioning their response to Title IX complaints.
The New Interim Guidance confirms that the DOE intends to engage in the formal rulemaking process regarding how Title IX Institutions must respond to complaints of sexual misconduct, including sexual harassment and sexual violence. Until a Final Rule is published, the 2017 DCL and corresponding Q&A are the effective guidelines. Notably, the 2017 DCL and Q&A roll back provisions from the prior 2011 Dear Colleague Letter and the 2014 Q&A, which critics had labeled as fundamentally unfair to the respondent. The Office of Civil Rights (OCR) has signaled that it will allow Title IX Institutions more flexibility in setting their own standards and procedures for investigations of sexual misconduct.
Provisions Providing Greater Flexibility
- Title IX Institutions are no longer required to use the "preponderance of the evidence" standard. Instead, Title IX Institutions may choose to maintain that standard or implement the stricter "clear and convincing evidence" standard. The New Interim Guidance urges Title IX Institutions to use the standard that they use for other types of misconduct, to avoid the suggestion of discrimination.
- OCR no longer expects that a "typical" investigation will take sixty (60) calendar days, and instead focuses on the Title IX Institutions' effort to conduct a fair and impartial investigation.
- The right to appeal a finding can now be limited to the respondent.
- Title IX Institutions are now permitted to use informal resolution, where appropriate, in certain sexual misconduct cases, upon agreement by both parties.
- OCR no longer discourages cross-examination or questioning of complainants during hearings.
- Title IX Institutions may still need to implement interim measures; however, OCR no longer suggests that interim measures are meant solely to protect the complainant. Title IX Institutions have more flexibility to take steps that will not "deprive any student of his or her education." In addition, OCR recognizes that interim measures might have to change during the course of an investigation.
Provisions that Remain the Same
- Institutions must address instances of discrimination and harassment.
- Title IX Institutions must have a grievance procedure that applies to Title IX complaints. The procedure must outline timelines for investigations and provide a fair, impartial process for responding to complaints.
- Title IX Institutions must appoint a Title IX Coordinator in accordance with the 2015 Dear Colleague Letter.
- The New Interim Guidance does not make any changes to the requirements or definitions under the Clery Act or the Violence Against Women Act.
In short, if you have a sexual misconduct policy that you like right now, you are entitled to keep it. If you are currently revising your policy, or are interested in doing so, OCR has signaled that it will allow Title IX Institutions more flexibility in setting their own standards and procedures for investigations of sexual misconduct. Institutions that are interested in revising their policies may benefit from a review of OCR's 2001 guidance, "Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties," and the 2006 Dear Colleague Letter on sexual harassment, which are still in effect.
Be aware and mindful, Title IX Institutions may be subject to additional state or local laws or regulations governing their response to sexual misconduct, and must take such laws or regulations into account when crafting their Title IX policies. As always, institutions should continue taking seriously their responsibility to prevent sexual assault and harassment from occurring, and to handle complaints with empathy and fairness to both parties.
Venable represents institutions in developing Title IX policies, investigations, and compliance. Please contact the authors for questions and assistance.