OCR Withdraws 2011 DCL and 2014 Q&A on Campus Sexual Misconduct and Issues New Q&A
September 25, 2017
On Sept. 22, the Office for Civil Rights (OCR) of the U.S. Department of Education issued a new “Dear Colleague” letter (DCL), formally withdrawing the Obama administration’s April 2011 DCL and April 2014 Questions and Answers (Q&A), which provided guidance on how educational institutions that are subject to Title IX should respond to campus sexual violence and harassment. At the same time, OCR issued a new Q&A on Campus Sexual Misconduct (new Q&A). Although the new Q&A makes some important changes to specific items in the prior guidance, the same general framework for responding to campus sexual misconduct remains in place: Institutions still must investigate and adjudicate internal complaints, train employees and students, and designate at least one Title IX coordinator.
Pending a planned future notice and comment process that would lead to new federal regulations governing Title IX enforcement, the new Q&A and OCR’s 2001 “Revised Harassment” guidance document now explain how OCR intends to assess Title IX compliance.
Significant Provisions in New Q&A
OCR states generally in the new Q&A that institutions subject to Title IX “must formulate, interpret, and apply their rules in a manner that respects the legal rights of students and faculty, including those court precedents interpreting the concept of free speech.” Important provisions include:
- Interim measures. Noting that interim measures “may be appropriate” while an internal investigation is pending, the Q&A states that they should be available to either party and that when assessing the need for such measures, schools must not use “fixed rules or operating assumptions that favor one party over another.” In addition, schools must make “every effort to avoid depriving any student of her or his education.” The new guidance says nothing about interim suspensions for respondents. (Q&A, page 3)
- Investigation time frame. OCR no longer requires or suggests that investigations be completed within 60 days, stating that “no fixed time frame” exists and that OCR will instead evaluate a school’s “good faith effort” to complete an investigation. (Q&A, page 3)
- Equitable investigations. The Q&A makes clear that:
- The burden is on the school, not the parties, to “gather sufficient evidence” to make a determination whether sexual misconduct occurred and if so, whether a hostile environment resulted and must be redressed. (Q&A, page 4)
- Schools should not “restrict the ability of either party to discuss the investigation,” as doing so would likely impair their ability to obtain and present evidence “or otherwise to defend their interests.”
- When it begins an investigation that may lead to disciplinary action against a respondent, an institution should give that respondent written notice of the allegations “including sufficient details and with sufficient time to prepare a response before any initial interview.” Sufficient details include the:
- Parties’ identities
- “Specific section of the code of conduct” the respondent allegedly violated
- “Precise conduct” the respondent allegedly committed
- Date and location of the alleged incident
- The school should give each party enough advance written notice of any interview or hearing to “prepare for meaningful participation.”
- The school’s investigator should prepare a “written report summarizing the relevant exculpatory and inculpatory evidence.” (Q&A, page 4)
- Informal resolutions. OCR no longer prohibits or discourages institutions from using mediation or other informal resolution methods, which do not include the full investigation and adjudication of a formal resolution, in cases of alleged sexual assault. A school now may use an informal process in any case for which it deems appropriate—as long as the parties “voluntarily agree” to informal resolution after a full disclosure of the allegations and their formal resolution options. (Q&A, page 4)
- Standard of evidence. Schools are no longer required to use the “preponderance of the evidence” standard when adjudicating responsibility for sexual misconduct; they now may use either the preponderance standard or the higher “clear and convincing” standard. Schools should use the same evidentiary standard in sexual misconduct cases that they apply in all other cases of student misconduct. (Q&A, page 5)
- Advisors. In matters related to dating violence, domestic violence, sexual assault or stalking, higher education institutions must allow parties to be accompanied to any meeting or hearing by an “advisor of their choice,” including an attorney, although schools may restrict the extent of the advisor’s participation. (These provisions are consistent with separate statutory requirements under the Reauthorization of the Violence Against Women Act of 2013 (VAWA), which applies only to higher education). (Q&A, page 5)
- Investigation report. Schools must give both parties the same “meaningful access” to any information that will be used during meetings and hearings, including the investigation report. In addition, they should permit the parties to provide written responses to the investigation report before making a determination on responsibility. (Q&A, page 5)
- Sanctions. Schools should ensure that sanctions imposed on students who are found responsible for sexual misconduct are “proportionate” to the violation. Schools should also consider “the impact of separating a student from his or her education.” (Q&A, page 6)
- Appeals. Schools may decide whether to allow any appeals. If they do so, they are permitted—but not required—to make the same appeal rights available to both parties. Specifically, a school “may choose to allow appeal (i) solely by the responding party; or (ii) by both parties.” (Q&A, page 7)
- Status of resolution agreements. The Q&A states that, notwithstanding the withdrawal of the 2011 DCL and the 2014 Q&A, existing voluntary resolution agreements remain binding on the individual schools that entered into them. (Q&A, page 7)
- Educational institutions should not expect the anticipated new regulations to be finalized quickly; the process is likely to take a year or longer.
- The new guidance leaves many questions unanswered. Some of those questions may be clarified in the near future. In the meantime, institutions should consult with legal counsel before making any changes to their policies governing campus sexual misconduct and continue to follow their current policies until they are revised.
- All institutions should continue to comply with relevant state law requirements.
- Higher education institutions should also continue to follow requirements of VAWA and its regulations, which apply in cases of dating violence, domestic violence, and sexual assault or stalking.
- When institutions revise their policies and procedures, they must train students, faculty, and staff on any new requirements. The new Q&A suggests that in the event of an investigation, OCR will carefully scrutinize training materials and "investigative techniques or approaches" for "sex stereotypes or generalizations".
The new Q&A says little about how it will apply to open investigations. Schools and their legal counsel may want to begin a dialogue with the appropriate OCR regional office about how OCR will handle open investigations in light of the new guidance. Although existing resolution agreements remain binding upon schools that entered into them, schools and their counsel also may want to enter a dialogue with OCR about the continuing need for the extensive compliance or monitoring requirements that went into many of those agreements.
Sept. 22, 2017, Dear Colleague Letter
September 2017 Q&A on Campus Sexual Misconduct
2001 Revised Sexual Harassment Guidance: Harassment of Students By School Employees, Other Students, or Third Parties
“Education Secretary Announces Intent to Change OCR Title IX Enforcement”
By Hillary Pettegrew, United Educators senior risk management counsel