U.S. Department of Education Rescinds 2011 Dear Colleague Letter and Issues Interim Guidance on Title IX and Sexual Violence.

Category: Education Matters
Date: Sep 26, 2017 08:07 PM

On Friday, September 22, 2017, the Office for Civil Rights (OCR) of the U.S. Department of Education rescinded the 2011 Dear Colleague Letter and the 2014 Questions and Answers guidance on Title IX and Sexual Violence.  Along with the rescission, OCR issued interim guidance on campus sexual misconduct that explained the Department’s expectations of educational institutions.  This announcement builds on U.S. Secretary of Education Betsy DeVos’s remarks on revising Title IX regulations earlier this month.

Under the new guidance, educational institutions remain responsible for ensuring equal educational opportunities for all students and for addressing sexual assaults and sexual violence.  Educational institutions have an obligation to respond to sexual misconduct when they know or reasonably should know of an incident or student complaint.  Institutions should continue to designate at least one employee to act as the Title IX Coordinator to respond and coordinate the institution’s obligations to respond to discrimination and harassment on the basis of sex and gender.  Further, educational institutions remain subject to the requirements of the Clery Act, which requires institutions to disclose campus crime statistics and information about campus security policies as a condition of receiving federal student aid.  The Department of Education Office of Civil Rights’ interim guidance does not add legal requirements for educational institutions nor does it limit anyone’s right to file a Title IX complaint.  The new guidance does not impact an educational institution’s obligations under state law.

MAJOR CHANGES IN FEDERAL GUIDANCE

Use of informal resolutions

If an institution determines that a particular Title IX complaint is appropriate for an informal resolution, it may offer to facilitate an informal resolution, including mediation, to assist parties in reaching a voluntary resolution.  All parties, including the complainant and respondent, must receive full disclosure of the allegations and information about options for formal resolution before voluntarily agreeing to participate in an informal resolution.  If parties agree to an informal resolution, an educational institution does not have to complete a full investigation and adjudication of a report of sexual misconduct.

Standard of proof

An educational institution’s findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.  The standard in adjudications for sexual misconduct should be consistent with the institution’s standard for adjudicating other student misconduct cases.

However, under California’ Affirmative Consent statute, colleges and universities receiving state funds are required to use a preponderance of the evidence standard when adjudicating sexual assault complaints. (Ed. Code, § 67386.)  This means the evidence must show it is "more likely than not" – i.e., greater than 50 percent likelihood – that the victim did not consent.

Cross-examination during discipline hearings

Any process made available to one party in the adjudication procedure should be made equally available to the other party, including the right to cross-examine parties and witnesses or to submit questions to be asked of parties and witnesses.

Right to appeal

If an educational institution chooses to allow appeals from its decisions regarding responsibility and/or disciplinary sanctions, the institution may choose to allow appeal (i) solely by the responding party; or (ii) by both parties, in which case any appeal procedures must be equally available to both parties.  Under Title IX, an educational institution is not required to provide a complainant the right to appeal the school’s decisions of the adjudicating body.

WHERE TO FIND FEDERAL GUIDANCE

The U.S. Department of Education will rely on its Revised Sexual Harassment Guidance issued in 2001 and a Dear Colleague Letter on Sexual Harassment issued in 2006 to interpret Title IX laws and regulations.  Additionally, educational institutions can view OCR’s interim guidance pertaining to campus sexual misconduct discussing the Department’s current expectations of institutions after the rescission of the other guidance documents.

OBLIGATIONS UNDER CALIFORNIA LAW

California state law prohibits discrimination based on gender (sex), gender expression, and gender identity.  (Ed. Code, § 200.)  Under California law, educational institutions must adopt comprehensive, victim-centered policies and disciplinary procedures concerning sexual assault, domestic violence, dating violence, and stalking. (Ed. Code, § 67386.)  Under the state law, an institution's policy governing its student disciplinary process must use an affirmative consent standard to determine whether both parties to sexual activity provided consent.  Affirmative consent is a conscious and voluntary agreement to engage in sexual activity. (Ed. Code, § 67386.)

Similar to the Clery Act, state law requires postsecondary institutions to enter into written agreements with local law enforcement agencies and to report violent crimes, including hate crimes and sexual assaults, whether committed on or off campus. (Ed. Code, § 67380, (Ed. Code, § 67383.)

MORE CHANGES AHEAD

On September 7, 2017, U.S. Secretary of Education Betsy DeVos announced the Department would launch a public comment period concerning the development of new federal regulations pertaining to Title IX responsibilities arising from complaints of sexual misconduct.  The Department has not yet announced when the public comment period will begin.  Federal agencies must consult with the public during rulemaking.

SHOULD INSTITUTIONS CHANGE POLICY?

An educational institution’s obligations to address sex- and gender-based harassment and discrimination, including sexual violence, stalking, and intimate partner violence, stem from a variety of sources, including Title IX, Clery/VAWA Section 304, the U.S. Supreme Court, Title VII, Title VI, OCR, California state law, and its own policies and procedures.  The U.S. Department of Education plans to engage in the rulemaking process and issue new federal regulations and guidance in the next few years, thus educational institution would be wise to move slowly and to ensure policy changes comply with existing California law.

The Department’s new question-and-answer guidance concerning its Title IX enforcement is available here at the following link: OCR’s interim guidance.  We will continue to provide updates regarding changes in Title IX guidance and information on the federal notice-and-comment process as it becomes available.

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