You have likely heard that on September 22, 2017, the U.S. Department of Education's Office of Civil Rights withdrew the 2011 Dear Colleague Letter on Title IX enforcement and issued new interim guidance for institutions to follow. The Department promised a forthcoming notice and public comment process to develop "an approach to sexual misconduct" that allows for public input. The Department will no longer rely on the withdrawn documents in its enforcement of Title IX. Pending the Department's further guidance, we highlight some of the key similarities and differences under these revised Title IX guidance materials.
Many key aspects of Title IX are still intact. For instance, institutions must still:
- Have an institutional policy, designate a Title IX Coordinator, and publish grievance procedures that provide for prompt and equitable resolution of complaints of sexual misconduct.
- Effectively address sexual misconduct and harassment when the institution knows or reasonably should know of an incident, and in some circumstances, proceed regardless of whether or not a student formally files a complaint. Continue to require "responsible employees" to report potential misconduct to appropriate officials.
- Conduct investigations and adjudications fairly and impartially. Provide equal information, rights, and opportunities to all parties, including the right to an advisor. Before any disciplinary process, provide written notice (with sufficient details) to the responding party, including adequate time to prepare a response. Investigations should conclude with written reports summarizing the relevant evidence.
- Apply sanctions that are proportionate to the violation. Sanctions may be imposed by the same decision-maker who made the finding of responsibility, or by a different decision-maker.
- Provide written notice of the outcome to both parties concurrently, including any appeal rights.
- Make all required notifications and publications under the Clery Act.
- Renewed emphasis on bias-free and impartial decision-makers throughout the process, including recommended training and materials that are free of sex stereotypes.
- Ensure interim measures are tailored to the circumstances of a particular case; however, interim measures should not be based on assumptions that favor one party over another.
- Institutions should make a "good faith effort" to be prompt, but need not adhere to a fixed (e.g., 60-day) timeframe to conclude investigations.
- More flexibility in the adjudication process, including the flexibility to apply a "preponderance of the evidence" standard or a "clear and convincing evidence" standard. An institution should apply the same evidentiary standard in deciding sexual misconduct cases as it applies for other forms of disciplinary action.
- More latitude in whether to allow appeals and how to structure an appeal process.
Drummond Woodsum will continue to closely monitor communications from the U.S. Department of Education. We are available to guide you as further information becomes available, in assessing best practices for addressing sexual misconduct; revising policies and processes; developing clear communications for students and others on campus; and training campus stakeholders. If you have questions or would like to discuss the services we offer, please contact Ann Chapman or any member of our Higher Education Practice group.