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OCR, under the Trump administration, criticized the now-withdrawn documents because the previous administration issued them without undergoing the "notice and comment" procedures required for agencies promulgating new laws.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