U.S. Department of Education Issues New Guidelines for Addressing Sexual Misconduct Under Title IX
On September 22, 2017, the U.S. Department of Education’s Office for Civil Rights released three documents addressing how schools1 should investigate, assess, and resolve allegations of sexual misconduct, including sexual harassment and sexual violence:
(1) A Dear Colleague Letter, which formally rescinds prior guidance issued by the Obama Administration;
(2) A Questions and Answers document (Q&A) which discusses how to address issues involving sexual misconduct; and
(3) A press release, which discusses both the Dear Colleague Letter and the Q&A.
I. Effect of the New Guidance
The Office for Civil Rights (OCR), the federal agency charged with enforcing Title IX and its associated regulations, announced that its new guidance is designed to provide schools more flexibility, not to impose new obligations. Thus, schools may not need to change their policies based on the new guidance. Instead, schools should ensure their policies and procedures comply with current law, including the pre-Obama era federal guidance and state law. Noncompliant policies should be revised in consultation with legal counsel.
OCR’s new guidance rescinds only those guidelines issued by the Obama Administration. Two earlier documents remain in effect and are cited throughout the new guidance: (1) the January 19, 2001 Revised Sexual Harassment Guidance and (2) the January 25, 2006 Dear Colleague Letter on Sexual Harassment.
OCR also announced it will review Title IX with respect to sexual misconduct, which may result in new regulations. During this reassessment, OCR will consider public comments from interested parties through a formal rulemaking process. The new materials are considered temporary guidelines until final rules are implemented.
Applicable state law remains in effect and must be followed along with the new guidance.
II. The 2017 Dear Colleague Letter
The Dear Colleague Letter formally rescinds two documents issued by the Obama Administration:
(1) Dear Colleague Letter on Sexual Violence, issued by OCR on April 4, 2011
(2) Questions and Answers on Title IX and Sexual Violence, issued by OCR on April 29, 2014
The 2017 Dear Colleague Letter claims the rescinded guidelines resulted in school processes that lacked fairness and due process for both parties and discusses the Department’s plan to develop new rules. The Dear Colleague Letter points to the 2017 Q&A and the 2001 and 2006 guidance for further information on schools’ obligations under Title IX while awaiting the new rules.
III. The 2017 Questions and Answers Document (Q&A)
The Q&A addresses 12 questions about sexual misconduct issues affected by the rescission of the earlier guidelines. After releasing the new guidance, Candice Jackson, the Department of Education’s Acting Assistant Secretary for Civil Rights, held a conference call with a group of education attorneys to address inquiries about the Q&A. Although Ms. Jackson’s comments are not binding, they are discussed below to help clarify some of the statements in the Q&A.
For ease of reference, we divide the information in the Q&A into the four main phases of sexual misconduct review: (1) initial assessment of alleged sexual misconduct, (2) preliminary pre-investigation requirements, (3) investigation process, and (4) post-investigation results.
A. Initial Assessment of Alleged Sexual Misconduct
1. Incidents That Must be Investigated Pursuant to Title IX
The Q&A confirms that a school must review any report or suggestion of sexual misconduct to “understand what occurred” and address any alleged incident creating a hostile environment. A hostile environment exists “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.” As stated in the 2001 guidance, one incident of sexual misconduct can create a hostile environment.
The Q&A addresses the degree of control the school has over the incident. In Davis v. Monroe County Board of Education,2 the U.S. Supreme Court held that a school’s obligation to address an incident depends, in part, on the school’s “degree of control over the harasser and the environment in which the harassment occurs.” As quoted in the Q&A, the Davis ruling suggests schools may not have a duty to address sexual misconduct if they lack authority or control over the accused party or the event where the harassment took place. This quotation from Davis, however, was specific to the facts of that case, which addressed harassment and not sexual violence. In response to questions about the Q&A’s discussion of control, Ms. Jackson indicated the section was inserted for informational purposes to illustrate how courts may assess Title IX responsibilities.
The Q&A does not change the way OCR will assess whether a school should have addressed a complaint of sexual misconduct. As stated in the 2001 guidance and confirmed in the Q&A, schools “are responsible for redressing a hostile environment that occurs on campus even if it relates to off-campus activities.” Schools are encouraged to review and investigate any claim of sexual misconduct to determine if the alleged misconduct adversely affects a student’s ability to participate in or benefit from the school’s programs or activities, as required by Title IX.
2. Policy to Address Sexual Misconduct
As required by Title IX regulations and explained in the 2001 guidance, schools must create and implement a grievance procedure that provides for a prompt and equitable resolution of complaints of sex discrimination, including sexual misconduct. The 2017 Q&A emphasizes that this procedure should avoid sex stereotypes or generalizations, to ensure sexual misconduct is addressed objectively and impartially. Ms. Jackson clarified that this requirement is meant to discourage reliance on assumptions about complaining or responding parties.
Schools must also designate a Title IX Coordinator and identify responsible employees who will help students connect to the Title IX Coordinator. The specific duties of the Title IX Coordinator and responsible employees are detailed in the 2001 guidance and have not changed.
3. Free Speech Considerations
The Q&A also mentions that all institutions must formulate, interpret, and apply their procedures “in a manner that respects the legal rights of students and faculty,” specifically the “concept of free speech.” OCR indicates it will explore this issue in more detail during the review process and encourages interested parties to express opinions regarding free speech in this context.
B. Preliminary Pre-investigation Requirements
1. Notice to the Responding Party
Once a school receives notice of an incident that must be investigated under Title IX, the Q&A indicates the school should provide written notice to the responding party of the allegations, “including sufficient details” and “sufficient time to prepare a response before any initial interview.” “Sufficient details” may 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 the date and location of the alleged incident.”
Significantly, the Q&A indicates schools should provide this notice, not that the notice is mandatory. In her discussion of the Q&A, Ms. Jackson stated that schools should consider a number of factors when determining what notice to provide to responding parties, including: (1) confidentiality concerns or requests made by either party, (2) the safety of all students involved, and (3) the amount of information needed by the parties to adequately address the allegations.
The Q&A references the 2001 guidance’s discussion of confidentiality, which directs schools to balance a number of factors when determining the notice provided to the respondent, including “the seriousness of the alleged harassment, the age of the student harassed, whether there have been other complaints or reports of harassment against the alleged harasser, and the rights of the accused individual to receive information about the accuser and the allegations if a formal proceeding with sanctions may result.” The 2001 guidance also discusses the balance between the responding party’s due process rights to receive adequate information about the allegation, and safety concerns that may favor confidentiality. When determining what notice to provide students, schools should develop a process that balances these factors on a case-by-case basis.
2. Interim Protection Measures
The Q&A also directs schools to develop and implement measures to protect all students involved in an alleged incident throughout the investigation and beyond. The measures should not favor one party over the other or deprive any student of an education. The Q&A provides examples of such measures, but notes they should be tailored to the specific situation and adjusted over time to effectively meet evolving student needs. According to Ms. Jackson, prior guidance did not effectively highlight the need to consider the responding party’s education concerning interim measures.
3. Informal Resolution
A school may offer informal resolutions, such as mediation, that do not involve a full investigation and adjudication if: (1) all parties receive full disclosure of the allegations and the option for formal resolution, and (2) the school determines the informal process is appropriate for the specific complaint. The Q&A allows schools to consider informal resolutions to any allegations that meet these criteria. In contrast, the rescinded guidelines suggested that certain types of sexual misconduct allegations could never be informally resolved because of their severity.
As always, the investigation must be “adequate, reliable and impartial.” The parties must be provided equal rights and opportunities during the investigation. The Q&A indicates both parties should be given the same rights to: (1) have an attorney or other advisor present at an interview or hearing, (2) cross-examine witnesses, and (3) meaningful access to any information that will be used during the meetings and hearings, including the investigation report.
The Q&A is particularly critical of any policy, such as a “gag order,” that restricts either party from discussing the investigation, because it is “likely to deprive the parties of the ability to obtain and present evidence or otherwise to defend their interests.” The Q&A does not ban gag orders or other restrictive rules, but suggests schools review such rules to ensure they do not unfairly favor one side or prevent students from adequately addressing the complaint.
The Q&A notes there is no fixed period required to complete the investigation. However, OCR will evaluate the school’s “good faith effort” to conduct a fair impartial investigation in a timely manner. The rescinded guidelines indicated a typical investigation takes approximately 60 days, but also stated the timeframe depends on the specifics of the case.3 Nothing in the Q&A precludes schools from using the 60-day period as the general timeframe for a standard investigation.
D. Post-Investigation Results
1. Standard of Review
The most comprehensive discussion in the Q&A addresses the standard of proof applied to claims of sexual misconduct. The rescinded guidelines required schools to use a preponderance-of-the-evidence standard in Title IX proceedings, including fact-finding and hearings. The Q&A states that schools can use either the preponderance standard or a clear–and-convincing-evidence standard.
The preponderance standard requires evidence indicating the alleged conduct is more likely than not to have occurred. In other words, evidence weighted more than 50% in support of the allegation leads to a finding in favor of the complainant. While the Q&A does not define a clear-and-convincing standard, the U.S. Supreme Court has defined it as “clear conviction, without hesitancy, of the truth of the precise facts in issue.” 4
Although the Q&A states that schools may apply either standard, a footnote indicates the standard used for sexual misconduct “should be consistent with the standard the school applies in other student misconduct cases.” In response to inquiries whether schools must adjust their general misconduct policies, Ms. Jackson described this statement as a suggestion and not a requirement enforced by OCR.
The statement derives from a court decision cited in the Q&A5 to illustrate how courts may assess standards of proof in sexual misconduct matters; it does not necessarily reflect how OCR will assess specific situations. The standard of proof issue will likely be addressed during the rulemaking process.
If a school finds that sexual misconduct occurred, the Q&A provides the discipline should be “a proportionate response to the violation.” Specifically, any sanction must balance “how best to enforce the school’s code of student conduct while considering the impact of separating a student from her or his education.” Ms. Jackson indicated this statement is meant to encourage schools to avoid automatic sanctions for specific acts and instead consider the facts and circumstances of each incident.
The Q&A also cites the 2001 guidance for some of the factors schools should consider when fashioning a response that not only addresses the responding party’s conduct but also prevents future occurrences. According to the Q&A, the person charged with assigning the sanction may be the decision-maker who determined responsibility.
3. Notice of Results
Once a decision is made, the Q&A suggests the school give notice concurrently to both parties. Postsecondary institutions must notify the reporting party of: (1) the results of the investigation, (2) any remedies offered, (3) steps that will be taken to address the hostile environment, if any, and (4) sanctions that directly relate to the reporting party, such as an order requiring the responding party to stay away from the reporting party. The Q&A acknowledges that schools must comply with the Family Educational Rights and Privacy Act (FERPA)6 when disclosing sanctions. The school may decide not to inform the complainant of any remedial actions taken against the respondent.
For K-12 schools, the Q&A discusses only the notice to the reporting party. Schools should comply with the 2001 and 2006 guidance to determine the appropriate notice to responding parties and address any confidentiality concerns on a case-by-case basis. At a minimum, the responding party’s notice should describe the results of the investigation and any sanctions.
If a school chooses to allow appeals of its decisions regarding responsibility or disciplinary sanctions, the school may allow appeals solely by the responding party or by both parties. When asked why OCR allows for an appeal process only for the responding party, Ms. Jackson indicated that some institutions already have an appeal procedure in place for reporting parties through their general student misconduct process. Thus, this section suggests schools add an appeal process for responding parties if their current system allows only reporting party appeals. The Q&A also notes that OCR previously indicated that schools may allow appeals only for the responding parties because the responding party “stands to suffer from any penalty imposed and should not be made to be tried twice for the same allegation.”
Schools must continue to comply with any pending resolution agreements with OCR, which remain binding despite the new guidance. The Q&A expressly “does not add requirements to applicable law.” As discussed above, the new guidance is designed to loosen some requirements in the rescinded guidelines and serve as interim instructions until new rules are issued. The new guidance also reaffirms some of the requirements established in the 2001 and 2006 guidance. Schools can use the new guidance to ensure their current policies and procedures comply with applicable law and make adjustments as needed.
responses to charges of sexual misconduct. OCR plans to commence a formal process to reassess and revise the rules. It encourages all interested parties, including schools, to submit comments and suggestions during this process. Our firm will continue to monitor these developments and provide updates as information becomes available. In the meantime, if you have any questions, please feel free to contact us.
1 The documents generally use the term schools to reference educational institutions subject to Title IX. We likewise use schools to refer to elementary and secondary schools subject to Title IX, unless otherwise indicated.
2 (1999) 526 U.S. 629, 631.
3 April 4, 2011 Dear Colleague Letter, page 12, Section C.
4 Cruzan by Cruzan v. Director, Missouri Dept. of Health (1990) 497 US 261, 285, fn. 11.
5 Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 607 (D. Mass. 2016).
6 20 U.S.C. § 1232g.
About the Authors
Stephen M. McLoughlin
Stephen McLoughlin advises public and private agencies on a wide variety of transactional and litigation issues. He represents California community college districts, universities and school districts in education-related matters, providing advice and counsel concerning compliance with Title IX, transgender accommodations, First Amendment and other constitutional rights of students and employees and related federal and state laws.
Marilou F. Mirkovich
Marilou Mirkovich has represented employers in all aspects of labor relations and employment law. For the past 15 years, conducting, supervising, and evaluating investigations has comprised the central part of Ms. Mirkovich’s practice, with a focus on discrimination, harassment, whistleblower allegations, Title IX sexual misconduct, Public Safety Officer and Firefighter misconduct, and other complaints.
Eve P. Fichtner
Ms. Fichtner represents school districts, county offices of education, community colleges and private employers for personnel matters, student issues and all forms of discrimination and harassment claims. Ms. Fichtner has certification and significant experience conducting prompt, thorough and effective workplace investigations and Title IX investigations. She also provides resolution-based services to clients, including workplace coaching for employees and supervisors, conflict resolution training and facilitated meetings.