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.