As we suggested in our February 2017 blog post, the future of Title IX application in our institutions is in flux. The Department of Education Office for Civil Rights rescinded the Obama era 2011 Dear Colleague Letter and 2014 Guidance on September 22, 2017. These guidelines placed certain procedural requirements on investigations of sexual misconduct allegations conducted by postsecondary institutions receiving federal funding. The Department of Education (“DOE”) stated that the policy requirements in these documents led to procedures that did not adequately protect the rights of the students accused of sexual misconduct. Specifically, the DOE criticized these guidelines for: requiring a preponderance of the evidence standard, requiring Universities with appeal processes to allow accusers to appeal “not guilty” outcomes, discouraging Universities from allowing cross-examinations by the parties, prohibiting the Universities from relying on law enforcement investigation reports, and requiring Universities to employ an expedited timeline for investigations. Therefore, the DOE stated it is currently in the process of developing new regulations that it will issue for public comment by all stakeholders. Until more formal regulations are adopted, schools are to follow the Q&A issued on September 22, 2017.
The primary change that the Q&A creates that schools should be aware of is the standard of proof requirements. Now, the Q&A allows institutions to implement either a preponderance of the evidence or a clear and convincing evidence standard for sexual misconduct investigations. However, schools are cautioned that “the standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases.” Therefore, to comply with the interim measures, schools wishing to keep a preponderance of the evidence standard in place must ensure they do not impose tougher standards of review in other student misconduct cases, such as a clear and convincing standard of proof.
Other notable changes also appear to afford institutions a new degree of autonomy. The 2011 Dear Colleague Letter required schools that implemented appeals procedures to provide the same appellate rights for both parties. In contrast, the new Q&A states that Universities with appeals procedures may now allow only the responding party to appeal. Additionally, with the repeal of the 2011 Dear Colleague Letter, there is no official guidance discouraging schools from allowing the parties to cross-examine each other. The Q&A simply notes that if schools allow cross-examinations, both parties must have the same rights under those procedures. Moreover, the Q&A states that universities now have the option to implement informal resolution processes, such as mediation, if all parties agree and the school determines the informal process is appropriate for the particular complaint. Lastly, the Q&A instructs that there is no required timeframe to complete an investigation, which lifts prior guidance that investigations should typically take 60 days to resolve.
Although the Q&A does afford Universities these new options, it is important to keep in mind that the DOE is planning to issue more formal changes in the near future. The DOE intends to engage in formal rule-making to afford all stakeholders the opportunity to comment on proposed regulations. There is a degree of uncertainty about what those regulations will require, and what provisions, if any, from the Q&A will be imposed. While it is important for schools to ensure compliance with the new Q&A during this interim period, Title IX remains the law of the land and requires schools receiving federal funds to provide protection on their campuses from sexual harassment and discrimination. Proper investigations will continued to be required.
Paul S. Thaler is the Managing Partner in the Firm’s Washington, D.C. office, Chair of the Firm’s Scientific Misconduct Group, and Co-Chair of the Internal Investigations Group.
Alissandra D. Young is an Associate in the Firm’s Federal Contracting Group and focuses her practice on government contracts and litigation.