Friday, Sept. 22 was an eventful afternoon for Title IX compliance. The U.S. Education Department officially withdrew the core sexual misconduct guidance documents issued during the Obama administration: the 2011 Dear Colleague Letter and 2014 FAQ document. In doing so, the Education Department reiterated Secretary Betsy DeVos’ recent announcement (see previous client alert) that following a public comment period, new rules ultimately will be issued. In the meantime, the Education Department published interim guidance which can be found at this link.
There's a lot to digest in the interim guidance, but I have some initial thoughts to share with college and university administrators. It’s helpful to categorize all the new information into three primary buckets:
1. Required Changes Schools Must Make Now
Although the interim guidance states that it does not add requirements to existing law, several of the requirements it describes feel new or at least newish to me.
- Interim Accommodations. The new guidance emphasizes that schools must assess the need for both complainants and respondents to receive interim measures such as counseling and academic accommodations. In other words, interim measures should not be described or administered as services for students who have experienced sexual misconduct. Rather, they should be made available to both parties on the basis of need. Note: This does not mean that if you provide campus escort services to a complainant, you automatically must provide campus escort services to the respondent, as well. It does mean that you must neutrally evaluate the needs of both students. In any given case, it might be appropriate to provide interim accommodations only to the complainant, only to the respondent, or to both of them. Depending on your current practices, this change may require some policy edits and procedural adjustments.
- Notice of Allegations. This is the biggie. The new guidance states that before any initial interview, a school should provide written notice to the responding party of the allegations against him or her. This written notice must include the identities of the parties involved, the specific policy violations alleged, the precise conduct at issue, and the date(s) and location(s) of the incident(s). In addition, this notice must be provided enough in advance to allow the respondent “sufficient time to prepare a response before any initial interview.” To put it mildly, this is a significant change with many complicated implications. Failing to meet this new requirement could provide a subsequently disciplined student with grounds for a lawsuit.
- Discussing the Investigation. The interim guidance states that restricting the ability of either the complainant or the respondent to discuss the investigation is “likely inequitable.” In my experience, investigators and administrators routinely instruct both parties not to discuss the investigation with other students. This directive is intended to protect both students’ privacy, reduce the risk of retaliation, and prevent the parties from colluding with or pressuring other students who may be interviewed as witnesses. Disallowing such directives has a host of – here’s a developing theme – complicated implications. Investigators and other administrators who play a role in the disciplinary process should be cautioned that the new sheriffs in town look unfavorably on instructing students not to discuss ongoing investigations.
2. Optional Changes Schools May Choose to Make Now
In some other areas, the interim guidance abolishes requirements put in place by the Obama administration but allows schools to decide for themselves whether to change or maintain those procedures.
- Deadlines. The old rule was that schools had to complete each Title IX investigation within 60 days (or have a good excuse). The new guidance eliminates the 60-day rule. But it goes on to say that schools must complete investigations in “a timely manner.” This is an opportunity to revise your policy if you choose. You can maintain a goal of 60 days or establish a different goal. Note, however, that you cannot just say that things will be done in a timely manner. Clery Act regulations still require that each stage of the disciplinary process be completed within reasonably prompt time frames that are specified in your policy.
- Mediation. The Obama-era guidance indicated that mediation was not an appropriate method for resolving sexual assault cases. The interim guidance lifts this restriction and allows schools – if they choose – to facilitate informal resolution through mediation in all cases. Note, though, that a school may not require a complainant and respondent to mediate. The interim guidance indicates that students are entitled to a formal adjudication if they do not voluntarily agree to participate in an informal resolution process.
- Standard of Evidence. As expected, the Trump administration has jettisoned the requirement that schools employ a preponderance of the evidence standard when adjudicating sexual misconduct cases. The interim guidance states explicitly that schools may now apply “either a preponderance of the evidence standard or a clear and convincing evidence standard.” If you want to explore making a change, consult with counsel. Do not precipitously make this change without guidance as it may have legal implications for past cases.
- Bilateral Appeals. The former rule was that the right of appeal had to be provided equally to both complainants and respondents. If respondents had the opportunity to appeal a finding of responsibility and/or sanction, complainants had to be allowed that opportunity, as well. This requirement is no more. Each school, in its discretion, may decide whether to continue allowing both parties to appeal or to reserve the right of appeal for respondents only.
3. Things That Are Not Changing
Much of the Title IX guidance issued by the Obama administration subsequently was codified into legally binding Clery regulations. This means that the vast majority of the current Title IX framework for preventing and responding to sexual misconduct remains in place and required by law.
This is an important message for campus leaders, faculty, and staff who may catch sight of a headline implying that President Trump has gotten rid of Title IX. It also is an important message for distressed students who believe – erroneously – that combating sexual assault no longer will be a priority. Colleges and universities remain responsible to stop sexual misconduct, prevent its recurrence, and remedy its effects. Here is a partial list of the many things that are not changing:
- Every school must have a Title IX coordinator to lead its efforts to prevent and respond to sexual misconduct.
- Every school must institute and publicize ways to report sexual misconduct. Responsible employees must continue to report possible incidents of sexual misconduct to the Title IX coordinator. And schools will continue to be held accountable for how they respond to incidents that they knew or should have known about.
- Supportive interim measures must be provided to victims who need them regardless of whether those individuals decide to pursue disciplinary action against the accused.
- All incidents of sexual misconduct must be investigated consistent with every school’s responsibility to maintain a safe and nondiscriminatory environment.
- Cases of sexual misconduct must be adjudicated fairly and impartially, and the result must be communicated to the complainant as well as the respondent.
- Investigators, adjudicators, and Title IX coordinators must receive specialized training on at least an annual basis.
- All schools must conduct ongoing prevention and awareness programs for students and employees to prevent sexual violence, promote safety, and reduce perpetration.
I will write additional updates in the coming days. Don’t hesitate to consult with counsel regarding questions and concerns.