On Friday, September 22, 2017, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) and Q&A on Campus Sexual Misconduct. The DCL withdrew the 2011 DCL on Sexual Violence and the 2014 Q&A on Title IX and Sexual Violence issued by the previous administration. In the DCL, Candice Jackson, Acting Assistant Secretary for Civil Rights stated, “[t]he 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students-both accused students denied fair process and victims denied an adequate resolution of their complaints.” The Acting Assistant Secretary went on to state that the 2011 and 2014 guidance documents imposed regulatory burdens without affording notice and the opportunity for public comments.
Based on these circumstances, the Department withdrew the guidance documents in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholder and “that aligns with the purpose or Title IX to achieve fair access to educational benefits.” The DCL stated the Department will not rely on the 2011 and 2014 guidance documents in OCR’s enforcement of Title IX, but instead OCR will rely on the newly released Q&A on Campus Sexual Misconduct and the Revised Sexual Harassment Guidance issued by the Department in 2001.
Additionally, the DCL states the Department intends to implement any future policy through the rulemaking process that responds to public comments. This echoes the announcement by Secretary of Education DeVos last month month indicating the Department plans to launch a notice and comment period to develop regulations under Title IX that address sexual misconduct.
What This Means to You
The 7-page Q&A on Campus Sexual Misconduct communicates the Department’s position on a few of the more controversial issues surrounding OCR’s enforcement activity, including the standard of proof and investigation timeframes. The Q&A states that schools may now either a preponderance of the evidence or a clear or convincing evidence standard in Title IX investigations. The guidance also states that moving forward there is no fixed time frame under which schools must complete Title IX investigations. Stating, “OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in timely manner designed to provide all parties with a resolution.”
Demetrius Peterson and Aleks Rushing will be presenting on Title IX: Internal and OCR Investigations at the Missouri School Boards Association Conference on Friday, October 6, 2017 at 9:00 a.m. For additional information on OCR’s guidance, please see Husch Blackwell’s Higher Education Legal Insights blog post.