Under OCR’S September 2017 “Q&A on Campus Sexual Misconduct” Guidance
Those who closely follow developments in the area of Title IX and Clery Act/VAWA law are watching one particular aspect of the Office for Civil Rights’ (OCR) September 2017 “Q&A” guidance with great interest: The Notice of Allegation instruction contained in the Answer to Question #6. Here is the Question and Answer, in pertinent part:
“Question 6:
What constitutes an “equitable” investigation?
Answer [as pertains to Notification]:
Once it decides to open an investigation that may lead to disciplinary action against the responding party, a school should provide written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview. Sufficient details 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. Each party should receive written notice in advance of any interview or hearing with sufficient time to prepare for meaningful participation.”
It is pretty clear from that language that the OCR expects schools to provide a written notice of allegations, with sufficient detail, upon the opening of a Title IX student misconduct investigation. But is it a formal mandate? And, if not, what are the consequences of ignoring the OCR’s guidance in this area?
To answer the first question [“is it a formal mandate?”], no, the OCR’s “Notice of Allegation” guidance set forth in the September 2017 Q&A is not a formal mandate. The basis for this conclusion is set forth in the September 22, 2017 “Dear Colleague Letter” issued by OCR simultaneously with the September 2017 Q&A. In explaining the rationale for the withdrawal of the 2011 and 2014 guidances, OCR noted:
“The Department imposed these regulatory burdens without affording notice and the opportunity for public comment. Under these circumstances, the Department has decided to withdraw the above-referenced guidance documents in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits. The Department intends to implement such a policy through a rule making process that responds to public comment.”
Of course, OCR is referring to the decision of past Department of Education administrators to issue, and seek to enforce, its unilaterally imposed guidances as if they were formal regulations despite the fact that said guidances were not enacted in compliance with the Administrative Procedure Act’s (APA) mandated notice and comment requirement. It would, thus, be inconsistent for the current OCR to claim that these new, similarly non-APA vetted guidances constitute positive law. Indeed, both new 2017 guidances explicitly state that they do “not add requirements to applicable law.”
However, it is submitted, in response to the second question posed above, that the consequences of ignoring or failing to implement this OCR instruction on the provision of “notice” is potentially significant for a non-compliant institution. Without the now withdrawn 2011 and 2014 OCR guidance documents, institutions no longer possess the excuse of “the government made me do it” when explaining their decision to create and implement Title IX student misconduct adjudication processes that are devoid of many meaningful due process protections for the accused student. Now, as a result of the 2017 guidances, schools (in the absence of any applicable Clery Act/VAWA or state law provisions) must justify and defend their processes on their own. In addition, if institutions have previously bowed at the altar of past guidance documents as justification for their existing processes, they will have to explain why these current guidances, which excoriate past due process abuses under the withdrawn guidances, have not been as enthusiastically embraced and implemented.
Among the many due process depriving “requirements” abandoned by the OCR in the 2017 guidances (mandated preponderance of the evidence standard, discouraging cross-examination, insisting complainants have a right to appeal if there is an appeals procedure), one new guidance was enunciated that came with an affirmative instruction to implement immediately, the institutions duty to timely provide a Notice of Allegations to the accused student. Presumably, the current OCR recognized the fact that the provision of a timely and meaningful Notice of Allegations to the accused student is inarguably fundamental to any reasonable notion of due process and/or fair process.
Indeed, the “Notice of Allegations” process could fairly be characterized as the “first sentry” of due process protection, so much so that the failure to provide it effectively taints the entire adjudicatory process that follows. Thus, if an institution fails to provide a timely and sufficient Notice of Allegations, they now not only stand alone in their effort to justify that decision once a subsequently disciplined student challenges that determination in a lawsuit, but will have to explain why they disregarded the OCR’s instruction to provide such notice, as well as their decision to disregard the rationale upon which such instruction was based.
Appropriately, schools are now themselves on notice that they need to provide timely and meaningful notice of the allegations to their students accused of Title IX misconduct. Hopefully, they will follow OCR’s instruction and immediately implement this necessary and prudent guidance.