On September 22, 2017, Acting Assistant Secretary for Civil Rights for the U.S. Department of Education, Office for Civil Rights, Candice Jackson, released a letter stating that the Department of Education is withdrawing the statements of policy and guidance reflected in the “Dear Colleague Letter on Sexual Violence, issued by the Office for Civil Rights at the U.S. Department of Education, dated April 4, 2011, and the Questions and Answers on Title IX and Sexual Violence, issued by the Office for Civil Rights at the U.S. Department of Education, dated April 29, 2014.”
The Department of Education states they will be developing “an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits.” The Department will be seeking public comment from stakeholders to draft new policy and will not be relying upon the withdrawn documents above. The Department simultaneously released the Q&A on Campus Sexual Misconduct to help guide stakeholders through this process and in the interim will be relying on its Revised Sexual Harassment Guidance, which was created using a notice-and-comment process and issued in 2001 and was reaffirmed in a January 25, 2006 Dear Colleague Letter.
Existing resolution agreements between schools and the Office of Civil Rights are still enforceable and that is the first place schools that are the subject of such a resolution should look when determining what to do with a sexual misconduct case.
The Department of Education has placed no timeline or guidance yet on how to submit comments nor on how long the solicitation period from stakeholders will be open or when the resulting rules will be delivered but has provided 12 questions and answers in hopes of guiding institutions on how to address sexual misconduct in the interim. Highlights from the Q&A are summarized below: (for the full text of the Q&A as noted above, please click on the hyperlink above)
- 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. In particular, when sexual misconduct is so severe, persistent, or pervasive as to deny or limit a student’s ability to participate in or benefit from the school’s programs or activities, a hostile environment exists and the school must respond.
- Interim measures may be appropriate during the investigation of a complaint, but a school may not rely on fixed rules or operating assumptions in favor of one party over another, and schools are not allowed to make such measures available only to one party. The Title IX Coordinator will determine what measures should be taken.
- 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, including how to file a complaint, to students, parents of elementary and secondary school students, and employees;
(ii) applies the grievance procedures to complaints filed by students or on their behalf alleging sexual misconduct carried out by employees, other students, or third parties;
(iii) ensures an 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 recurrence of sexual misconduct and to remedy its discriminatory effects, as appropriate.
- There is no fixed time frame (previous guidance suggested 60 days) under which a school must complete a Title IX investigation. 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.
- In every investigation conducted under the school’s grievance procedures, the burden is on the school-not on the parties-to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred and, if so, whether a hostile environment has been created that must be redressed. The investigation will be fair if:
• A person free of actual or reasonably perceived conflicts of interest and biases for or against any party leads the investigation on behalf of the school.
• Schools ensure that institutional interests do not interfere with the impartiality of the investigation.
• Title IX investigators are trained to analyze and document the available evidence to support reliable decisions, objectively evaluate the credibility of parties and witnesses, synthesize all available evidence - including both inculpatory and exculpatory evidence - and take into account the unique and complex circumstances of each case.
• Any rights or opportunities that a school makes available to one party during the investigation or on appeal are made available to the other party on equal terms, except that appeals may be restricted to the charged party.
• Parties are not restricted from discussing the investigation (e.g., through “gag orders”) which are likely to deprive the parties of the ability to obtain and present evidence or otherwise to defend their interests.
• Training materials or investigative techniques and approaches do not apply sex stereotypes or generalizations.
• Schools provide written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview. Sufficient details include:
- the identities of the parties involved;
- the specific section of the code of conduct allegedly violated;
- the precise conduct allegedly constituting the potential violation; and
- and the date and location of the alleged incident.
• Each party should receive written notice in advance of any interview or hearing with sufficient time to prepare for meaningful participation. The investigation should result in a written report summarizing the relevant exculpatory and inculpatory evidence. The reporting and responding parties and appropriate officials must have timely and equal access to any information that will be used during informal and formal disciplinary meetings and hearings.
- If all parties voluntarily agree to participate in an informal resolution that does not involve a full investigation and adjudication after receiving a full disclosure of the allegations and their options for formal resolution and if a school determines that the particular Title IX complaint is appropriate for such a process, the school may facilitate an informal resolution, including mediation, to assist the parties in reaching a voluntary resolution.
- The investigator(s), or separate decision-maker(s), with or without a hearing, must make findings of fact and conclusions as to whether the facts support a finding of responsibility for violation of the school’s sexual misconduct policy. If the complaint presented more than a single allegation of misconduct, a decision should be reached separately as to each allegation of misconduct. The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard. Clear and convincing evidence means that the evidence must show that it is substantially more likely than not or highly probable that the allegation is true. Preponderance of the evidence means the evidence must show that there is a greater than 50% chance, based on all the reasonable evidence, that the allegation is true.
- The parties should have the opportunity to respond to the report in writing in advance of the decision of responsibility and/or at a live hearing to decide responsibility.
- The decision-maker as to any disciplinary sanction imposed after a finding of responsibility may be the same or different from the decision-maker who made the finding of responsibility. Disciplinary sanction decisions must be made for the purpose of deciding how best to enforce the school’s code of student conduct while considering the impact of separating a student from her or his education. Any disciplinary decision must be made as a proportionate response to the violation.
- OCR recommends that a school provide written notice of the outcome of disciplinary proceedings to the reporting and responding parties concurrently.
Michael Best will continue to monitor this issue. If you have any questions, please don’t hesitate to reach out to your Michael Best attorney.