Beginning Of Year Check Up: Are You Title IX Compliant Given The Department Of Education’s Recent Guidance?

What Happened?

On September 22, 2017, Candace Jackson, Acting Assistant Secretary for Civil Rights of the United States Department of Education (“DOE”) issued a Dear Colleague Letter that withdrew the policy guidance reflected in the Dear Colleague Letter of April 4, 2011 and the Questions and Answers on Title IX and Sexual Violence dated April 29, 2014. In one swift stroke, the Department of Education’s pronouncement overturned much of the guidance and regulations promulgated by the Obama administration since 2011. What does this mean for educational institutions, both Higher Education and Secondary Schools?

The Rundown

The following are the anticipated ramifications from the DOE’s announcements:

• There likely will be fewer civil rights investigations of educational institutions;
• The investigations currently being conducted will continue, will likely take four to six years, and, outside of stark conduct, will likely end with little negative consequence;
• Due Process to Respondents, which the Department of Education has already indicated was a perceived weakness of the Obama administration’s Title IX guidance and regulations, will be the likely subject of additional Department of Education Guidance in the year to come.  In the interim, the DOE’s September 2017 Q&A on Campus Sexual Misconduct (“2017 Q&A”) offers some guidance on what due process it expects to occur in Title IX investigations and processes;
• Individual educational institutions will have more discretion concerning which burden of proof it will employ for Title IX hearings; and
• Currently, a clear and convincing standard may be used for Title IX hearings.

Does this mean that educational institutions have to be less invested in, or concerned about, their investigation and resolution of complaints under Title IX? Absolutely not.

For the Record

The DOE still places the burden on the educational institutions to investigate allegations of Title IX covered conduct. Further, students, faculty and parents have a heightened awareness of sexual harassment and sexual assaults, domestic violence, stalking and dating violence, and will employ significant energy to ensure that the school continues to address these issues with focus and zeal. Further, the repeal of the Obama administration’s rules and regulations does not obviate the school’s obligation to continue to address Title IX concerns; it just needs to do them under the pre-2011 rules and regulations and in line with the DOE’s pronouncements in its 2017 Q&A.

What Happens Next?

Schools should be revisiting their policies to ensure that adequate due process is provided to the Respondents. This requires meaningful notice and an opportunity to be heard, the right to an adviser of choice at the Title IX investigation and hearing stages, and the opportunity to present a defense to Complainant’s allegations. Individual educational institutions will, at the moment, be given discretion, based on their institutional culture, to choose a burden of proof for Title IX matters that each institution considers most appropriate. However, institutions will have to remain mindful of the expectations of the community for safety, fairness, and the prompt addressing and resolution of these issues.

While the DOE promulgations seem like a “game changer”, very little will likely change in how higher education institutions address Title IX covered conduct, with the exception of a potentially greater focus on due process for the Respondents. Those of us who have represented institutions over the years have identified due process as a concern, and our clients therefore have already addressed these concerns. Educational Institutions should revisit their procedures to satisfy themselves that the Respondents get appropriate due process, so as to avoid both review by the DOE and to prevent civil litigation by Respondents because of perceived unfairness in the Title IX process.

If you have any questions about your Title IX procedures, please contact one of the country’s leading Title IX Attorneys, Kevin Raphael, now.