NAICU Washington Update

Obama-Era Campus Sexual Assault Guidance Rescinded

September 25, 2017

In a move that was widely expected, the Department of Education announced it was rescinding the Title IX campus sexual assault guidance documents issued by the Obama Administration in 2011 and 2014, and replacing it with new, interim guidance.

The interim guidance, which provides additional flexibility to institutions and protections for students accused of sexual misconduct, will remain in effect until the Department finalizes regulations via the notice-and-comment rulemaking process. The agency has indicated that it expects to issue proposed rules within the next several months.

Secretary of Education Betsy DeVos has long criticized the previous guidance, alleging that it was unfair to accused students and was not issued pursuant to proper procedure. The new guidance, which continues to emphasize that schools have a duty to prevent and remedy sexual misconduct, appears aimed at remedying these perceived shortcomings. It is unclear whether institutions will have to modify their practices to conform to the new requirements, but most colleges and universities are likely to maintain their current campus sexual assault policies for the time being.

Although the interim guidance reiterates many of Title IX’s existing legal obligations, it also departs from its predecessors in several notable respects, particularly with regard to how it treats students accused of sexual misconduct. The biggest modifications occur with respect to the investigative and disciplinary processes that comprise a school’s grievance procedures. In what appears to be the most significant change, the guidance now permits a school to use either a preponderance of the evidence standard or a clear and convincing evidence standard when adjudicating sexual assault complaints, although institutions are urged to apply the same standard of evidence in all types of student misconduct cases. Under the Obama Administration’s guidance, schools had been required to use a preponderance of the evidence standard, which some critics deemed to be unfair.

Like its predecessor, the interim guidance requires schools to use a trained investigator to investigate Title IX complaints and to offer both parties the same rights and opportunities during the grievance process. However, the new guidance now emphasizes that accused students should be given written notice of the sexual misconduct allegations that provides “sufficient details” and “sufficient time” for the student to prepare for “meaningful participation” in any interview or hearing.  Accused students should also have “timely and equal access” to information that will be used in the disciplinary hearing.

Additionally, schools are still required to establish grievance procedures that provide for a “prompt and equitable” resolution of sex discrimination complaints, but the guidance no longer specifies a 60-day time frame in which investigations must be completed. Rather, the guidance indicates that the Department will evaluate whether a school has made a “good faith effort” to conduct fair and timely investigations.

Under the previous guidance, the Department discouraged informal resolutions and barred mediation for sexual assault complaints, but the interim guidance permits schools to facilitate such resolutions, including mediation, if all parties voluntarily agree to participate and the school deems it appropriate. In such cases, schools will not have to conduct a full Title IX investigation and adjudication. The guidance leaves in place an institution’s ability to provide interim measures to students involved in sexual misconduct cases, but emphasizes that schools may not “favor one party over another” or “make such measures available only to one party.”

In addition, the interim guidance attempts to clarify the interaction between requirements imposed under Title IX and the Clery Act. For example, the guidance notes that Clery regulations require institutions to allow both parties the opportunity to have an advisor of their choice present during disciplinary hearings involving allegations of Clery violations—dating violence, domestic violence, sexual assault, or stalking—although an institution may limit the extent to which such an advisor may participate. Likewise, the guidance distinguishes between Clery violations and other forms of sexual misconduct not covered by the Clery Act when specifying the procedures that schools must follow when providing written notice of the outcome of disciplinary hearings and rights of appeal.

The interim guidance also addresses disciplinary sanctions and rights of appeals. According to the guidance, disciplinary sanctions must be a “proportionate response” to the violation and should consider the impact of separating students from their education when determining how to enforce the school’s code of conduct. Institutions may choose whether to allow students to appeal the results of disciplinary hearings, but, if they decide to provide such a right, institutions must allow appeals either by the accused student or by both parties.

When determining how to respond to the interim guidance, institutions are advised to remember that other legal requirements—including those set forth in the Clery Act, state laws, and Title IX case law—remain in effect. The Department has also stated that existing resolution agreements are still binding even if negotiated during the period in which the predecessor guidance was in effect. Such agreements, however, do not apply to other schools.

Finally, it is important to note that Title IX is not subject to the negotiated rulemaking provisions that typically govern regulations affecting certain higher education programs. Currently, it is unclear whether the Department will solicit public comments prior to issuing the proposed rules. 

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