Today, the U.S. Department of Education (DOE) issued interim guidance for schools on how to investigate and adjudicate allegations of sexual misconduct under Title IX. The guidance follows a Sept. 7 announcement from Secretary of Education Betsy DeVos that DOE and its Office for Civil Rights (OCR) will initiate a process to review its current Title IX guidance and enforcement policies. Specifically, Secretary DeVos indicated that DOE plans to “replace the current approach with a workable, effective and fair system.”

DOE also announced that it is withdrawing the April 2011 Dear Colleague Letter (DCL) and the April 2014 Questions and Answers on Title IX and Sexual Violence. Among other things, these guidance documents established specific procedural and evidentiary standards that schools were required to apply when evaluating claims of sexual violence. While the guidance was written to target institutions of higher education, OCR indicated that it also applied to K-12 institutions.

In her comments earlier this month, Secretary DeVos expressed concerns about the clarity of the April 2011 DCL and the April 2014 Q&A document, the due process afforded to accused students, and the appropriateness of quasi-judicial processes created by educational institutions to address Title IX complaints. She also criticized the prior administration’s “failed system” of increased policing of Title IX complaints: “Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students.”

While recognizing the profound negative impacts of sexual misconduct, Secretary DeVos observed that enforcing ambiguous or excessively broad definitions of assault and harassment harms both students and institutions. “In order to ensure that America’s schools employ clear, equitable, just and fair procedures that inspire trust and confidence,” she said, the Department “will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way.” Secretary DeVos did not provide details regarding the timeline for comment submissions or the structure of any proposed rule.

The interim guidance reiterates DOE’s intent to engage in rulemaking on the topic of schools’ Title IX responsibilities concerning complaints of sexual misconduct and includes information on the following topics:

  • School’s responsibility to address sexual misconduct complaints
  • The relationship between Title IX and the Clery Act
  • Interim measures that may be appropriate under the circumstances
  • Procedures a school should follow to adjudicate a finding of responsibility for sexual misconduct
  • What constitutes an "equitable" investigation
  • School obligations concerning appeals
  • Appropriate evidentiary standards
  • Notifications to parties of the outcomes of disciplinary proceedings

OSBA will continue to monitor future developments closely, and share updates as they become available. If you have questions in the meantime, please contact the Division of Legal Services.

Posted by Sara C. Clark on 9/22/2017