October 23, 2021

Volume XI, Number 296

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October 22, 2021

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OCR Withdraws Obama-Era Title IX Guidance

On September 22, 2017, the U.S. Department of Education's Office for Civil Rights (OCR) issued a "Dear Colleague Letter" that withdrew two key Title IX documents issued during the Obama administration—a Dear Colleague Letter on sexual violence from 2011 that set the tone for the Obama administration's position on institutional obligations to respond to Title IX complaints, and a Q&A on Title IX and sexual violence from 2014 that detailed the ways in which institutions could ensure their policies complied with Title IX.

OCR, under the Trump administration, criticized the now-withdrawn documents because the previous administration issued them without undergoing the "notice and comment" procedures required for agencies promulgating new laws. OCR now states that it will develop a new approach to student sexual misconduct cases after responding to the concerns of stakeholders through a notice and comment process. In the interim, OCR issued a Q&A on Campus Sexual Misconduct. Though the 2017 Q&A document relies upon OCR's 2001 Revised Sexual Harassment Guidance document—which was drafted with input from the public—the Q&A also makes departures from prior guidance.

Among the most significant implications of the rescission as discussed in the Q&A are that:

  • Findings of responsibility can now be based on a preponderance of the evidence or clear and convincing evidence, as long as the standard is consistently applied to other student misconduct cases.

  • There are no fixed timelines within which investigations must be conducted to be considered "prompt" under Title IX.

  • Appeal procedures can allow appeals by only the responding party.

  • Informal resolutions such as mediation are permitted in sexual misconduct cases, if schools determine that use of mediation is appropriate, and the parties agree to participate in an informal process.

  • Restrictions on the ability of either party to discuss the investigation (e.g., through "gag orders") are likely to be viewed as inequitable.

Despite OCR's new interim guidance, many policies and practices for Title IX investigations remain unchanged. Institutions still have an obligation to provide interim measures when appropriate, the burden still rests with the institution to gather evidence, and all parties must be given support throughout the investigation and equal opportunities to present evidence.

As a best practice, institutions should review their Title IX policies on notification, investigations, interim measures, and decision-making to ensure fairness to all parties

Copyright © by Ballard Spahr LLPNational Law Review, Volume VII, Number 269
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About this Author

Olabisi Okubadejo, Ballard Spahr Law Firm, Baltimore, Higher Education and Labor Employment Attorney
Of Counsel

Olabisi "Bisi" Ladeji Okubadejo represents institutions of higher education and business entities in civil rights and employment matters, with a particular focus on matters arising from alleged discrimination on the basis of race, disability, age, religion, and sex, including sexual harassment and sexual violence. She has experience both as an attorney in private practice and with the U.S. Department of Education’s Office for Civil Rights (OCR). She advises clients on complying with various federal laws, including the Americans with Disabilities Act (ADA), Titles VI and...

410-528-5532
Michael Cianfichi, Ballard Spahr Law Firm, Baltimore, Litigation Attorney
Associate

Michael P. Cianfichi litigates federal and state court matters across several practice areas, including housing, construction, employment, accessibility, real estate, and commercial law. Michael also assists in Title IX investigations at colleges and universities. As a law student, he worked as a student attorney in the Low Income Taxpayer Clinic and JustAdvice clinical programs at the University of Maryland School of Law. He also worked as a law clerk in the Felony Major Crimes Division of the U.S. Attorney's Office for the District of Columbia.

410-528-5509
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