Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On September 22, 2017, the U.S. Department of Education (DOE) rescinded its April 4, 2011 Dear Colleague Letter regarding sexual assault and its April 29, 2014 Questions and Answers on Title IX and Sexual Violence.1 This is the fourth time the DOE has rescinded guidance regarding Title IX in 2017.2
The 2011 Dear Colleague Letter and 2014 Q&A provided guidance on legal obligations in addressing sexual violence on campuses. Higher education institutions should now reconsider how they comply with Title IX obligations when a student or employee files a sexual assault complaint.
The DOE withdrew the existing 2011 and 2014 guidance on the basis that the Department imposed regulatory burdens without affording notice and the opportunity for public comment. This move comes on the heels of DOE Secretary Betsy DeVos’s September 7, 2017 speech in which she stated that “‘rule by letter’ is over”3 and that significant changes to Title IX policy would be forthcoming.4 Moving forward, the DOE intends to implement new guidance through a rulemaking process that invites public comment. The DOE advised that it will continue to rely on its Revised Sexual Harassment Guidance issued in 20015 and the 2006 Dear Colleague Letter on Sexual Harassment.6 Secretary of Education DeVos stated in a press release, “In the coming months, hearing from survivors, campus administrators, parents, students and experts on sexual misconduct will be vital as we work to create a thoughtful rule that will benefit students for years to come. We also will continue to work with schools and community leaders to better address preventing sexual misconduct through education and early intervention.”7
Issued contemporaneously with the DOE’s September 22, 2017 announcement is a Q&A on Campus Sexual Misconduct that explains the DOE’s current expectations of schools.
Similar to the Obama-era Title IX policies, the Q&A calls for each school to designate a Title IX coordinator, comply with the Clery Act regulations when addressing allegations of dating violence, domestic violence, sexual assault or stalking, and adopt and publish grievance procedures that provide for a prompt and equitable resolution of complaints of sex discrimination, including sexual misconduct.
The new guidance, however, differs from the prior administration's policies in several important ways. The Q&A removes the suggested 60-day timeframe to complete Title IX investigations, no longer requires an evidentiary hearing and allows for informal resolution—including mediation—of sexual assault cases. Schools can now decide whether to use a clear and convincing (reasonably certain) standard, a higher standard of proof, to adjudicate a hearing or continue to use the preponderance of the evidence (more likely than not) standard mandated by the 2011 Dear Colleague Letter. In addition to these changes, the Office of Civil Rights (OCR) will no longer enforce the prior requirement that schools must allow appeals from both parties. Instead, institutions of higher learning can limit appeals to only respondents.
Despite the changes, all existing resolution agreements between the OCR and schools and universities remain binding upon the schools that entered into them. The rescission of the 2011 Dear Colleague Letter and 2014 Questions & Answers Guidance, however, signals that a more permanent change to Title IX is on the way. To ensure compliance going forward, schools must become familiar with the DOE’s interim guidance and be on the lookout for future announcements from the DOE.
2 On February 22, 2017 the DOE rescinded Letter to Emily Prince from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights at the Department of Education dated January 7, 2015 regarding transgender students’ access to facilities such as restrooms and Dear Colleague Letter on Transgender Students jointly issued by the Civil Rights Division of the Department of Justice and the Department of Education dated May 13, 2016.
3 On June 16, 2017 John Doe and Oklahoma Wesleyan University v. Catherine Lhamon, in her official capacity as Assistant Secretary for Civil Rights, Office for Civil Rights, John B. King, Jr, in his official capacity as United States Secretary of Education and US Department of Education, 1:16 c-v-01158-RC was filed in the US District Court District of Columbia alleging that the 2011 Dear Colleague Letter violated the Administrative Procedure Act. On August 11, 2017 the DOJ filed an unopposed motion to hold the case in abeyance for 90 days as the DOE reviewed the 2011 Dear Colleague letter.
4 A full transcript of Sec. DeVos’s speech can be found here: https://www.washingtonpost.com/news/grade-point/wp/2017/09/07/transcript-betsy-devoss-remarks-on-campus-sexual-assault/?utm_term=.2fc7d56b89b5.
5 The Revised Sexual Harassment Guidance is available at https://www2.ed.gov/about/offices/list/ocr/docs/shguide.html.
6 The 2006 Dear Colleague Letter is available at https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html.