Author: Debbie Osgood

With Jonathan Helwink

On Friday, the Department of Education released a “Q&A on Campus Sexual Misconduct” along with a letter from Acting Assistant Secretary of the Office for Civil Rights, Candice Jackson withdrawing the Department’s 2011 “Dear Colleague Letter on Sexual Violence” and the 2014 “Q&A on Title IX and Sexual Violence.”  This new Q&A is intended to set forth the Department’s “current expectations of schools” in the “interim” while formal rules are crafted after a notice and comment period.  The Department indicated that it would rely on this interim Q&A along with the Department’s 2001 “Revised Sexual Harassment Guidance” and 2006 “Dear Colleague Letter on Sexual Harassment,” affirming the 2001 guidance.   The interim Q&A provides a helpful, consolidated description of the requirements of the Clery Act, the Violence against Women Act, and Title IX in outlining the Department’s expectations for schools.  The following are the key changes, along with explanations, that HMBR attorneys have noticed in the interim Q&A.

• Standard of Proof – Colleges are no longer required by federal Title IX policy to use the preponderance standard of evidence and may use either the preponderance or the higher “clear and convincing” evidence standard. The Department – in a footnote that is bound to be highly debated in the months to come – Footnote 19 – indicated that schools should use a standard in sexual misconduct cases that is consistent with the standard the school applies in other student misconduct cases.  Relying on a case involving Brandeis University, the Department stated that using “special procedures” in sexual misconduct cases “suggests a discriminatory purpose and should be avoided.”  In our view, schools that use different standards for sexual misconduct and for other types of misconduct may still be able to use those standards if they have legitimate, non-discriminatory justifications for the use of different standards (for example, that the applicable state law requires the use of the preponderance standard in sexual misconduct cases).  And, importantly, federal courts in other cases have specifically ruled that having procedures that may favor victims does not equate to gender discrimination.

• Due Process – The interim Q&A emphasizes that any rights or opportunities made available to one party should be made available to the other party, including having an attorney present and participating (consistent with the Clery Act) and the right to cross-examine parties and witnesses. Respondents must be provided adequate written notice and the opportunity for meaningful participation in any proceedings; these are fundamental due process rights that many federal courts have already insisted be afforded to respondents.  The interim Q&A continues OCR’s approval of the use of a single investigator model, but now considers “gag orders” inequitable.  Findings of fact may be made with or without a hearing.  Training materials or investigative techniques must be objective and impartial.

• Time Frames – The interim Q&A removes the sixty-day timeline from previous guidance and replaces it with a requirement to conduct “fair, impartial investigation[s] in a timely manner.”

• Off Campus – Citing to the U.S. Supreme Court’s decision in Davis v. Monroe City Board of Education, the guidance states that a “university does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity” of the college.

• Interim Measures – The document emphasizes that services should be available to both the complainant and the respondent. In rescinding the 2014 Q&A, the guidance removes the previous “minimize the burden on the complainant” language and highlights that schools should make “every effort to avoid depriving any student of her or his education.”

• Informal Resolution and Mediation – Colleges may now facilitate informal resolution of Title IX complaints, including mediation, if all parties agree to participate in the complaint’s voluntary resolution, thus opening the way for the use of “restorative justice” techniques for sexual violence cases.

• Right of Appeal – Under the interim guidance, a school may choose to allow appeals regarding responsibility or sanctions to both parties or to the respondent only.

• Free Speech – The interim Q&A directs schools to formulate, interpret and apply their Title IX rules consistent with the rights of students and faculty, including court precedents interpreting the concept of free speech.

• And More? – There are still a lot of questions about the interim guidance, including: Has the Department softened the previously-understood requirement that schools must conduct an investigation in all cases of reported sexual violence? The interim guidance states that where a school knows, or reasonably should know, of an incident of sexual misconduct, “the school must take steps to understand what occurred and to respond appropriately.”  Compare this language to the previous language requiring schools “to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.”  In addition, the accompanying letter from OCR’s Assistant Secretary criticized that the former guidance “forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints.”  It is unclear whether the Department is suggesting that schools may defer to criminal proceedings without conducting their own Title IX investigations in sexual violence cases.

Reactions to the temporary guidance have been swift.  Victim advocates view the guidance as sending the wrong message to survivors, making them less comfortable reporting sexual violence incidents.  Advocates for accused students cheered the directives, applauding the Department for taking their concerns over due process violations seriously.

Despite the reactions, there is still much to be worked out and decided.  While potentially foreshadowing what will eventually become permanent, the Q&A is only interim guidance with a notice and comment period still to come.  At HMBR, we will continue to keep you updated on developments and, as always, we are ready to advise you on how this interim guidance affects your campus policies and procedures.

With Jonathan Helwink

On September 7th, Secretary of Education Betsy DeVos delivered an address regarding the Department’s revised approach to Title IX enforcement.  Announcing the goal of “getting it right” on Title IX, DeVos indicated a new phase of Title IX enforcement.  Here are six key takeaways from her remarks:

1.      Continued Commitment to Enforcing Title IX.  The Secretary stated that the Department is committed to continuing to enforce the obligations of colleges and universities under Title IX to prevent and address sexual misconduct on their campuses.   But she indicated that the Department would take a more collaborative and less punitive approach with schools in enforcing the law.

2.      No Immediate Change in Title IX Policy.  The Secretary did not announce any immediate change – rescission or modification – to existing Title IX (or VAWA) guidance.  So the Obama Administration’s Title IX policy guidance, including the requirement to use the preponderance of the evidence standard for evaluating sexual misconduct allegations, remains in effect.

3.      Opportunity for Public Input.  Stating that “the era of ‘rule by letter’ is over,” DeVos announced a “notice and comment” period to replace current Title IX guidance. No details were given as to the timing or format of this process.  In general, notice and comment periods range from thirty to sixty days, but agencies have the discretion to extend the period to 6 months or more for “complex rulemaking”, which may be appropriate for Title IX.

4.      Heighted Emphasis on Due Process.  As expected, the Secretary expressed grave concern with respect to the procedural protections afforded to accused students in the disciplinary process.  She gave a number of specific signals as to the Department’s views on the procedural protections that should be afforded in the process, including:

– Not requiring the use of the “lowest standard of evidence”

– Allowing attorneys to play a greater, more active role in the process

– Starting with a presumption of innocence (note use of criminal law terminology)

– No system “bias” toward finding a student responsible for sexual misconduct

– Adequate notice of specific allegations

– Requiring evidence to be shown to all parties (already required by VAWA)

– Allowing witnesses to be cross-examined

– Providing a right to appeal in all instances

– Not imposing “gag orders” prohibiting parties from talking to others about the process

Many of these due process protections echo themes heard from the Foundational for Individual Rights in Education in the report it issued earlier this week, and heard previously in recommendations (cited by the Secretary in her speech) of the ABA, the American College of Trial Attorneys, and  professors from the law schools at Harvard and Pennsylvania.

5.      Heightened Protection for Free Speech.  Secretary DeVos took aim at university “harassment codes” and what she called “ambiguous and incredibly broad definitions of assault and harassment” that, in her view, punish students and faculty “simply for speaking their minds or teaching their classes.”  She suggested that there needs to be more precision in the definition of sexual misconduct and harassment, so that schools do not “trample speech rights.”

6.      Outsourcing Title IX Adjudicatory Responsibilities?  While referring to the importance of public feedback on the replacement guidance, DeVos signaled interest in exploring “all alternatives.” Interestingly, the Secretary suggested that one alternative approach would be “to allow educators focus on what they do best: educate” and give the adjudication of sexual misconduct to professionals outside of the university setting. The Secretary opined that college and university administrators do not have the necessary legal expertise and training to adjudicate sexual misconduct cases and given this “competency gap,” they should instead draw upon others in this area.  She stated, “Get out of the way and let the professionals do their jobs. Students, families, and school administrators are generally not lawyers and they’re not judges. We shouldn’t force them to be so for justice to be served.”

The bottom line is that institutions need to stay tuned for further developments in this area. HMBR will continue to monitor developments as they happen and will inform you when new information comes available.

For advice on steps that schools can take now to be ready for changes in federal policy and to position themselves to avoid Title IX litigation, see the blog posted earlier this week on “Smart Steps to Take Now to Avoid Title IX Litigation.”

For those of us who are fans of Game of Thrones, we know that “Winter is Coming.”  The same can be said of federal Title IX policy:  “Change is Coming.”  But as we await further direction from the Trump Administration, change has already arrived in the surge of Title IX judicial decisions issued against institutions across the country. There are key steps that colleges and universities can and should take now to bolster their Title IX compliance programs. These steps should help lessen the risks of being sued by complainants and accused students in federal or state court and/or in discrimination complaints to the U.S. Department of Education’s Office for Civil Rights (OCR). These steps will put institutions in a better position to successfully defeat any challenges, regardless of the course taken in Title IX policy by the federal government in the future.

Reaffirm Your Commitment to Title IX Compliance and to Fairness – Regardless of how federal Title IX policy changes in the future, the obligation to address sexual violence is not going away on your campus. Title IX compliance is now part of the education package that students and their parents expect from colleges and universities. The commitment of your institution’s top leadership to Title IX compliance continues to be critical. Leadership should reaffirm that your institution will not tolerate sexual harassment and violence and that it will “promptly and equitably” resolve complaints in a fair manner that protects the safety and welfare of students and the community.

Conduct a “Due Process Scan” – Think of this as like an MRI scan looking to detect due process-related risks in your institution’s procedures and practices.  With increasing frequency and volume, the courts (and OCR) have been drumming a “due process” beat specifying that, while sexual misconduct proceedings do not need to have all the bells and whistles of criminal trials, the process must be fair for all of the parties given the high stakes involved. Schools should review their procedures and practices and adjust them as needed in light of the heightened emphasis on procedural protections.

Examine your procedures from the point of view of the accused student:  are you providing adequate notice of the charges and a meaningful opportunity to be heard in the disciplinary process?  Courts are increasingly willing to weigh in on whether the procedural balance struck by a particular university is fair.  Just in the past few weeks, federal courts have issued injunctions to stop two universities from suspending the accused students because of due process concerns (respondent was denied the opportunity to be heard when a panel failed to ask questions submitted by the respondent and redacted portions of his response; respondent was denied adequate notice when informed of a new theory of culpability only a week before the hearing, which the court said was not enough time for the respondent to prepare a defense, and was not allowed to challenge testimony of three complainant’s witnesses made via written statement only).  Doe v. Pa. State University (M.D. Pa. Aug. 10, 2017) and Nokes v. Miami University (S.D. Ohio., Aug. 25, 2017). This spring, a federal court ordered another university to allow an accused student to take his final exams, following concerns of inadequate notice and an unfair advantage to the university because the student was “essentially on his own” during the process, unable to talk with his lawyer or advisor until breaks in the hearing process.  The court rejected the university’s asserted rationale that the process was “educational” and not “punitive.”  Per the court, “This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of that term.” (Doe v. Univ. of Notre Dame, N.D. Ind. May 8, 2017)

Avoid Bias – My dad would call this one a “no brainer.”  But as litigation involving claims of gender bias against colleges and universities continues to rise, it cannot be overemphasized that the determination of whether a student has violated your school’s sexual misconduct process must be made in an impartial manner.  Courts have looked for statements or affiliations by members of the disciplinary tribunal or by university offices, and patterns of decision making that tend to show the influence of the gender.  A federal lawsuit filed by an accused student against Oberlin College this summer cited as evidence of bias a social media post by the administrator charged with serving as the appeals officer in the sexual assault case. The administrator had retweeted the following tweet by a group called “End Rape on Campus:”  “To survivors everywhere, we believe you.”  Decision makers must be impartial.

Also, review your policies, training materials and outreach publications to be sure they are gender-neutral, fair and balanced.  Also, be sure to train your investigators and adjudicators to interpret evidence in a fair, impartial and accurate manner. The lawsuit against Oberlin criticized that the College did not require that the annual training of its Title IX team include training on “how to conduct impartial fact-finding proceedings.”

Manage Expectations – With the rise in student activism on sexual violence and other issues, campuses need to be clear with students about what their institution’s Title IX process is and what it is not.  The process should be a fair, impartial legal analysis of whether the facts in a particular case support that a student has violated the institution’s sexual misconduct policy.

It is not a vehicle for educational institutions to side either with “survivors” or “accused students” as a matter of policy or politics.  Keep in mind the scolding by a federal judge of Brown University students who inundated the court with emails to influence the outcome in a particular case against an accused student, reminding the students of “basic civics” that the court is “an independent body” and must make its decisions “based solely on the evidence before it.  It cannot be swayed by emotion or public opinion.”  Doe v. Brown University (D.R.I. Sept. 28, 2016).  Students should understand that the same is true for the disciplinary process at your institution.

Pay Attention to the Title IX Fundamentals and Share Lessons Learned – As we enter a period in which we are likely to see some re-calibration of federal Title IX policy, it is important to remember the bedrock fundamentals of Title IX compliance.  The Department has consistently required that, upon notice of possible sexual harassment, institutions must take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end the sexual harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects. The Title IX regulations also specifically require:  dissemination of a non-discrimination statement, designation and public contact information for a Title IX Coordinator, and prompt and equitable procedures for resolving complaints of sex discrimination, which include sexual harassment and sexual violence.[1]

Much of the ongoing and coming debate over changes to Title IX policy concerns whether to retain or modify the “requirements” and “recommendations” in the Obama-era Title IX guidance, including the 2011 Dear Colleague Letter on Sexual Violence and the 2014 Frequently Asked Questions document.[2]  In my view as a private attorney and former OCR official, colleges, universities and federal government officials have learned a lot about effective policies, procedures and practices in this area since 2011. Think of the advances made by schools in formalizing and publicizing their procedures, conducting thorough investigations, training staff, improving case documentation, providing resources to the parties, and assessing campus climates.  We should look to the lessons learned by colleges and universities, and those discussed in the 20+ major OCR/DOJ Title IX cases issued since the 2011 guidance, as we move forward to the next era in Title IX compliance.

Prepare for Change – In addition to the steps above, now is the time to think through the logistics of the process your school will follow to make any adjustments to your policies and procedures that may be needed if the Department rescinds or modifies all or part of the policy guidance issued under the Obama Administration.

Most experts believe that the Department will increase the procedural protections required to be afforded to the parties in sexual misconduct cases, particularly for the accused student.  And many believe that the preponderance of the evidence standard will be changed in some way – either by imposing a higher standard (“clear and convincing”) or letting states and schools choose the standard they want to use.  Schools need to be ready to adjust their policies, procedures and practices to comply with changes in federal law and to anticipate the process they will use to make changes.  Additional questions include: Who needs to be included in the process of your institution to decide whether to make changes and, if so, what changes to make?  What is the procedure your institution needs to follow to revise policies and procedures? Will additional training of employees and students be needed?

We offer the above recommendations as admittedly very broad brush strokes for bolstering your Title IX compliance program.  Of course, please feel free to contact us if we can assist you in implementing any or all of these steps on your campus.

[1] The Department’s 2001 Sexual Harassment Guidance (which, unlike the Obama guidance, was issued after public notice and consistent) specifically cited the following as required elements of prompt and equitable grievance procedures:

• Notice to students and employees of the procedure, including where complaints may be filed;
• Application of the procedure to complaints alleging harassment carried out by employees, other students, or third parties;
• Adequate, reliable and impartial investigation of complaints, including the opportunity to present witnesses and other evidence;
• Designated and reasonably prompt timeframes for the major stages of the complaint process;
• Notice to the parties of the outcome of the complaint, and
• An assurance will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate.

[2] Of course, the VAWA regulations also added specific requirements relating to training, outreach and grievance policy and procedures, many of which were based on OCR’s policy recommendations, and these will need to be part of the conversation as well.