On September 22, 2017, in a “Dear Colleague Letter”, Acting Assistant Secretary for Civil Rights (U.S. Department of Education), Candice Jackson, withdrew the statements of policy and guidance reflected in both the “Dear Colleague Letter” of April 4, 2011 and the “Questions and Answers on Title IX and Sexual Violence”, issued by the Office of Civil Rights (OCR) on April 29, 2014. OCR, also on September 22, 2017, published a new, September 2017 “Q&A on Campus Sexual Misconduct”. It was a significant and expected event that changes the rules for what colleges and universities may and must do in connection with their investigation into, and response to, allegations of sexual misconduct under Title IX.
Initially, it is important to discuss what the new guidance and “Q&A” do not do. These documents do not alter the obligations that institutions possess under the Clery Act/Violence Against Women Act (VAWA). Under the Clery Act/VAWA, institutions are to provide prompt, fair, and impartial disciplinary proceedings for allegations of sexual assault, dating violence, domestic violence, and stalking (the reader is invited to review the blog post entitled “Domestic Violence and Dating Violence Allegations on College Campuses: The Distinction between Title IX and the Violence Against Women Act” for an overview of Clery Act/VAWA regulations).
So what does the new “Dear Colleague Letter” do? Here is a partial list:
It withdraws the April 4, 2011 “Dear Colleague Letter’s” “requirement” that schools adopt a “Preponderance of the Evidence” standard in administering student discipline;
It withdraws the April 4, 2011 “Dear Colleague Letter’s” “requirement” that schools with a Title IX appeals process allow complainants to appeal not responsible findings;
It withdraws the April 4, 2011 “Dear Colleague Letter’s” language that discouraged cross-examination by the parties at the disciplinary hearing, and its suggestion that to recognize a right to cross-examination might itself violate Title IX;
It withdraws the April 4, 2011 “Dear Colleague Letter’s” “requirement” forbidding schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints;
It withdraws that portion of the April 4, 2011 “Dear Colleague Letter” that provided that any due process protections afforded to accused students should not “unnecessarily delay” resolving the charges against them;
It reaffirmed the applicability of the 2001 Revised Sexual Harassment Guidance as well as the January 25, 2006, “Dear Colleague Letter” on Sexual Harassment.
In addition, the September 2017 “Q&A on Campus Sexual Misconduct” clarified these important topics:
Where an institution knows or reasonably should know of an incident of sexual misconduct, the school must take steps to understand what occurred and to respond appropriately (Q&A #1);
There is no fixed timeframe under which a school must complete a Title IX investigation (Q&A #5);
It includes in its description of an “equitable” investigation a process where, upon opening an investigation that may lead to disciplinary action, a school provides written notice to the responding party of the allegations constituting the potential violation of the school’s sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview (Q&A #6);
It reminds institutions that any disciplinary decision or sanctions must be in proportion to the violation (Q&A #9).
Obviously, the withdrawal of the April 4, 2011 “Dear Colleague Letter” and the guidances set forth in the September 2017 Q&A constitute a positive step towards restoring important due process protections in Title IX campus disciplinary proceedings. However, most of what has been accomplished is the removal of certain barriers to due process to those schools that are inclined to provide enhanced rights to students accused of sexual misconduct. Accordingly, schools are still permitted to use the “Preponderance” standard, they are just no longer mandated to (under OCR guidances). Schools are still permitted to deny cross-examination; they are just no longer threatened with a finding of a potential institutional Title IX violation if they permit it, etc.
Time will tell if this is the first step in a longer process of the Department of Education actually mandating more stringent due process protections for students facing a Title IX campus misconduct proceeding or a new policy of affording greater discretion for the individual institutions to set their own policies.