On September 22, 2017, the U.S. Department of Education issued new Interim Title IX Guidance providing Questions and Answers on Title IX sexual violence. Significantly, the new guidance withdraws the April 4, 2011 Dear Colleague letter and the April 29, 2014 Questions and Answers that the Department of Education previously issued. As the 2011 and 2014 guidance were the basis for sweeping reforms many schools made to their existing Title IX policies, the obvious question is: do school Title IX policies need immediate revision? We strongly recommend that schools carefully peruse the new guidance and their existing policies to ensure compliance, though formal rulemaking is forthcoming. However, we have identified the most likely “red flags” that schools will need to revise in their policies in response to the new guidance.
- Is the standard of evidence for sexual misconduct hearings “preponderance of the evidence?” The 2011 Dear Colleague letter required schools to use a “preponderance of the evidence” standard (it is more likely than not that sexual violence had occurred) when adjudicating Title IX sexual violence incidents. The September 2017 Guidance now allows schools to use either a preponderance of the evidence standard or the clear and convincing evidence standard (it is highly probable or reasonably certain that the sexual violence occurred), which is a higher standard to meet. There is currently no requirement that the clear and convincing evidence standard be adopted – unless a school uses the preponderance of the evidence standard for sexual violence hearings, and the clear and convincing evidence standard for other disciplinary proceedings such as those involving academic and student code of conduct violations. Therefore, schools should identify whether the same standard of evidence is applied consistently for all types of hearings, and adjust as needed.
- Are interim measures offered only to the complainant and not to the accused? The previous guidance provided that schools must offer interim steps to protect the complainant pending the final outcome of an investigation. The September 2017 guidance now requires schools to offer the same interim protections to an accused that it offers to a complainant. Therefore, any policies that provide for complainants to receive counseling, to adjust their academic schedule, or to change their living situation, must now provide the same options to those accused of sexual violence.
- Is there a process in place for providing notice of an investigation to an accused? The prior guidance did not require an accused to be notified of an investigation against him or her. However, stringent notice requirements are provided in the September 2017 guidance. A school must provide written notice to the accused of the allegations and “sufficient details,” with “sufficient time” to prepare for an initial interview. A list of “sufficient details” is provided. Schools should carefully review policies to ensure that those accused of sexual violence are being provided proper notice under the new guidance.
- Is informal resolution currently offered as a remedy for sexual harassment cases? The prior guidance stated that resolving sexual violence complaints informally, such as through mediation, was inappropriate, and that schools should clarify in their grievance policies that mediation would not be used to resolve accusations of sexual assault. The prior guidance did allow for the informal resolution of sexual harassment complaints. The September 2017 guidance, however, encourages informal resolution of all Title IX complaints if it is agreed upon by all parties, if the school finds that the particular incident warrants that remedy, and as long as all parties are given a full explanation of the allegations and the available remedies. While the language of the new guidance does not seem to require the use of informal mediation, if schools do have an informal resolution process in place already for cases of sexual harassment, the policies should be reviewed to ensure that it meets the requirements set forth in the new guidance, including the full disclosure of the allegations and options for formal resolution, and the voluntary consent of all parties.
While awaiting the formal rulemaking on this matter, it is strongly advised that schools begin reviewing their policies and identifying any procedures that are inconsistent with the new guidance. However, in addition to taking these corrective steps, schools may choose to revise their policies to include some of the more flexible measures that are now allowed. These include offering the right of appeal to the accused only (as opposed to requiring schools to offer any right of appeal to the complainant and accused equally), and allowing both parties to personally cross-examine each other during hearings. In the absence of formal rule-making however, we advise that schools take a conservative approach, beginning with revising policies that specifically contradict the new guidance.
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