When Donald Trump took office, he made it clear that his administration would be making changes to Title IX enforcement. On Friday, September 22nd, the US Department of Education announced that it was withdrawing two major Title IX guidance documents which had been issued by the Obama administration. In a ten-page Q&A on Campus Sexual Misconduct (found here), the US DOE discusses its intentions to engage in further rule-making processes on Title IX enforcement. It also provided information about how OCR will assess and evaluate Title IX compliance in the meantime. To the extent that the new guidance is incomplete, the Department has returned to the standards articulated in the 2001 Revised Sexual Harassment Guidance (found here). While this update will discuss some of the most important features, all school officials should read the new guidance for themselves.
Schools’ Responsibility under Title IX
Your general obligations under Title IX have not changed. “An institution that receives federal funds must ensure that no student suffers a deprivation of her or his access to educational opportunities on the basis of sex.” In order to fulfill this obligation, “where the school knows or reasonably should know of an incident of sexual misconduct, the school must take steps to understand what occurred and to respond appropriately.”
How OCR Will Assess Compliance
One of the main criticisms of the 2011 Dear Colleague letter, was that it over protected the rights of individuals making accusations about Title IX violations while failing to provide basic protections to those accused of sexual misconduct. The new guidance is clear that a school must offer the same rights, opportunities, services, and evidentiary access to both the person alleging a violation as well as the person who is being accused. The new guidance also reminds schools that they “must formulate, interpret, and apply their rules in a manner that respects the legal rights of students and faculty, including those court precedents interpreting the concept of free speech.”
In determining if a school has met its obligation, the OCR will first look to ensure that the school has adopted and published grievance procedures “that provide for a prompt and equitable resolution of complaints of sex discrimination, including sexual misconduct.” Thus, the focus will be on ensuring that the response to an incident the school knew or should have known of was prompt and equitable.
Prompt and Equitable Investigation
The most substantial changes brought about by the new guidance are the determinative elements of a “prompt and equitable investigation.”
“OCR has identified a number of elements in evaluating whether a school’s grievance procedures are prompt and equitable, including whether the school (i) provides notice of the school’s grievance procedures . . . (ii) applies the grievance procedures to complaints filed by students or on their behalf alleging sexual misconduct . . . (iii) ensures and adequate, reliable, and impartial investigation of complaints, including the opportunity to present witnesses and other evidence; (iv) designates and follows a reasonably prompt time frame for major stages of the complaint process; (v) notifies the parties of the outcome of the complaint; and (vi) provides assurance that the school will take steps to prevent reoccurrence of sexual misconduct and to remedy its discriminatory effects, as appropriate.”
2017 Q&A on Campus Sexual Misconduct (emphasis added). These elements provide the basis for an OCR review of a school’s investigation. Significantly, these elements diverge from the standards set forth in the 2011 Dear Colleague in several ways.
In terms of ensuring an “equitable” investigation, schools now have a choice about how they will determine whether sexual misconduct has occurred. Institutions may use either the “preponderance of the evidence” standard or a “clear and convincing evidence” standard. Think of it as the difference between 51% and something closer to 75% in terms of the evidentiary burden to prove a Title IX violation occurred. This is a significant development. Given the politicized reactions to allegations of sexual assault and harassment, the choice of which standard to use in evaluating these allegations will become important. We believe boards of education are the proper entities to decide which standard their school will adopt. KSB Complete Policy Service subscribers will be receiving an updated policy to address this and other changes from the new guidance.
Similarly, the Department has rejected the 2011 Dear Colleague letter’s standard of a 60-day response period for a “prompt” investigation. Instead, “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.” This means the board’s policy should have clear timelines, but those timelines are not limited to 60 days.
Finally, the new guidance is clear that the Department wants to ensure that “any rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms.” The only exception is that a school may choose to allow appeals from the responding party, only. A school could choose to allow no appeals from its decisions, an appeal for only the responding party (the accused), or an appeal option for both parties. However, if both parties are allowed to appeal, the appeal process must be the same.
In many ways, the new guidance from the Department is a rejection of the policies and standards set forth and adhered to by the previous administration. Overall, the document demonstrates that the Office of Civil Rights seeks to ensure that schools put forth good faith efforts “to conduct fair, impartial investigations in a timely manner designed to provide all parties with resolution.” In doing so, reviews will look to make sure that all parties were afforded equal rights and protection. The guidance also signals an increased emphasis on due process rights for the accused. Until the Department completes its intended rule-making process, this document will serve as the best understanding of the new administration’s interpretation and enforcement of Title IX.
On January 30, 2018 ESUCC and participating ESUs will sponsor a Title IX training by the attorneys at KSB. This will fulfill your Title IX Coordinator’s annual training requirements. During that workshop, we will review this new guidance along with other recent Title IX developments. In the meantime, if you have any questions or concerns about your school’s obligations, or how the new guidance will influence your investigation processes, we recommend you contact your school attorney, or call Karen, Steve, Bobby, or Tim.