On Friday, September 22, 2017, when the Trump administration announced that it was rescinding Obama-era Title IX sexual assault guidance and issuing a new question and answer document while undertaking a formal review, most assumed it meant the previous Questions and Answers on Title IX and Sexual Violence issued by the U.S. Department of Education on April 29, 2014, had been rescinded. However, many hoped the April 2011 “Dear Colleague” letter (DCL), which set forth requirements that schools investigate and address sexual assault and sexual misconduct, would at least survive in part. However, except for provisions enshrined in the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (the Clery Act), as amended, the press release issued by the Department of Education made it clear that both the April 2014 guidance and the April 2011 DCL had been withdrawn. The press release stated that the department will instead rely on its 2001 Revised Sexual Harassment Guidance, as well as the DCL on Sexual Harassment issued on January 25, 2006.

The department’s new Q&A on Campus Sexual Misconduct is a 7-page document consisting of 12 questions and answers. As with similar documents, it contains a notation that the department has determined that it constitutes a significant guidance document. For postsecondary institutions, the guidance provides the following questions and answers.

Schools' Responsibility to Address Sexual Misconduct

Question 1: What is the nature of a school’s responsibility to address sexual misconduct?

The Q&A begins by addressing institutions’ responsibility to address sexual misconduct, harkening back to guidance issued in 2001 and stating “whether or not a student files a complaint of alleged sexual misconduct or otherwise asks a school to take action, where the 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.” “Taking steps to understand what occurred” is not a mandate to conduct an investigation, and requiring a school to “respond appropriately” is fairly vague.

The answer to Question 1 goes on to state that when sexual misconduct is “so severe, persistent, or pervasive as to deny or limit a student's ability to participate in or benefit from the school's programs or activities, a hostile environment exists and the school must respond." It does not define what sort of response is required. On September 7, 2017, Secretary of Education Betsy DeVos announced that she would initiate a notice and comment period to develop regulations under Title IX that address campus sexual misconduct. Presumably, some definition of the response required by Question 1 will be included in this process.

Question 2: What is the Clery Act, and how does it relate to a school’s obligations under Title IX?

Question 2 references the Clery Act and its requirement that covered postsecondary institutions capture and disclose campus crime statistics and security policies. It also references the Violence Against Women Reauthorization Act of 2013 (VAWA), which amended the Clery Act to require that institutions compile statistics related to dating violence, domestic violence, sexual assault, and stalking. It further references the requirement that institutions include policies, procedures, and programs pertaining to these incidents in their Clery reports.

The answer to Question 2 does not address the additional rights afforded to campus victims of sexual assault, domestic violence, dating violence, and stalking by VAWA’s amendment to the Clery Act. It also makes no mention of the requirement that institutions report hate crimes based on additional categories of bias (i.e., gender identity) in addition to race, gender, religion, sexual orientation, ethnicity, and disability. The response to Question 2 also does not address the procedures victims should follow if a crime of sexual assault, domestic violence, dating violence, or stalking has occurred, or provide information to victims concerning the importance of preserving evidence that may assist in proving that the alleged criminal offense occurred or be helpful in obtaining an order of protection. Neither the response to Question 2 nor the remainder of the document addresses the Clery Act's requirement that the victim be notified that he or she is entitled to be notified about options with respect to the involvement of law enforcement and campus authorities, including notice of the option to notify law enforcement authorities, including on-campus and/or local police; to be assisted by campus authorities in notifying law enforcement authorities; and to decline to notify such authorities.

Interim Measures

Question 3: What are interim measures, and is a school required to provide such measures?

The response to Question 3 addresses interim measures. The Q&A states that individualized services are to be offered "as appropriate to either or both the reporting and responding parties involved in an alleged incident of sexual misconduct, prior to an investigation or while an investigation is pending.” This is consistent with previous practice with respect to both interim and permanent measures. This section omits, however, the requirement under the Clery Act that the institution maintain confidentiality with respect to accommodations or protective measures provided to the victim to the extent that maintaining such confidentiality would not impair the ability of the institution to provide accommodations or protective measures. There is also no mention of permanent protective measures. Why interim protective measures are addressed in the Q&A when permanent protective measures are not is unclear.

Grievance Procedures and Investigations

Question 4: What are the school’s obligations with regard to complaints of sexual misconduct?

The Q&A maintains the 2011 DCL’s requirement that a school adopt and publish Title IX grievance procedures that provide "prompt and equitable resolution of complaints of sexual discrimination, including sexual misconduct.” Missing, however, is the 2011 DCL's reference to employee sex discrimination complaints. The 2011 DCL required adoption and publication of Title IX grievance procedures providing "prompt and equitable resolution of student and employee sex discrimination complaints." The new Q&A leaves out the word “employees,” stating that grievance procedures must provide for "a prompt and equitable resolution of complaints of sex discrimination, including sexual misconduct."  This would seem to exclude employees, but since they are referenced elsewhere in the Q&A, may have simply been an oversight.

Rather than specifying provisions that grievance procedures must include, the Q&A simply states that the department’s Office for Civil Rights (OCR) has identified a number of “elements” that it uses to evaluate whether an institution’s procedures are prompt and equitable. It states that these elements include whether the school (1) provides notice of the grievance procedures, including how to file a complaint, to students, parents, and employees; (2) applies the grievance procedures to complaints filed by students or by others on the student’s behalf alleging sexual misconduct by employees, other students, or third parties; (3) ensures an adequate, reliable, and impartial investigation, including the opportunity to present witnesses and other evidence; (4) designates and follows a reasonably prompt time frame for major stages of the complaint process; (5) notifies the parties of the outcome of the complaint; and (6) provides assurance that the school will take steps to prevent recurrence of sexual misconduct and to remedy its discriminatory effects, as appropriate. As was previously the case, there is no requirement that the procedure include an appeal.

Question 5: What time frame constitutes a “prompt” investigation?

The answer to Question 5 addresses the time frame for a prompt investigation. The previously stated goal of completing the grievance process within 60 days is now gone. Although that time frame was a goal rather than a requirement, the new answer reads, “There is no fixed time frame under which a school must complete a Title IX investigation.”

According to the Department of Education’s “Questions and Answers on Title IX and Sexual Violence,” the previous 60-calendar day target referred to the entire investigation process, which included conducting the fact-finding investigation, holding a hearing or engaging in another decision-making process to determine whether the alleged sexual violence occurred and created a hostile environment, and determining what actions the school will take to eliminate the hostile environment and prevent its recurrence, including imposing sanctions against the perpetrator and providing remedies for the complainant and school community.

Question 6: What constitutes an “equitable” investigation?

The answer to Question 6 describes what constitutes an “equitable investigation.” In what appears to be a new standard, the Q&A places a three-part “burden . . . on the school” to

(1)   gather sufficient evidence to reach a fair, impartial determination concerning whether sexual misconduct has occurred;

(2)   determine whether a hostile environment has been created; and

(3)   determine whether the hostile environment “must be redressed.”

Theoretically, under this standard, a school could determine that sexual misconduct occurred, but did not create a hostile environment—or even that it did, but it need not be redressed.

The Q&A strongly discourages schools from asking the accused or accusing student to maintain confidentiality, reading, “Restricting the ability of either party to discuss the investigation (e.g., through “gag orders”) is likely to deprive the parties of the ability to obtain and present evidence or otherwise to defend their interests and therefore is likely inequitable.”

The response to Question 6 also states that a person without “actual or reasonably perceived conflicts of interest and biases for or against any party” must lead the institution’s investigation. Conceivably, the Title IX coordinator, Title IX co-coordinators, or investigators could be "reasonably perceived" as biased by the accused student and therefore disqualified from leading the investigation.

In other words, whenever there is an investigation, the accused student can accuse the official leading the investigation of bias if the student “perceives” them as biased. It is likely that the student will have that perception if the official works in a Title IX or investigatory capacity and therefore has a history of making decisions or findings. The response to Question 6 also states that schools should ensure that institutional interests do not interfere with the impartiality of the investigation—a reference to situations in which the school faces actual or anticipated litigation.

Like the 2011 DCL, the response to Q&A requires that the Title IX coordinator be trained on investigating sexual harassment complaints. New, however, is a requirement that the investigator "synthesize all available evidence," limiting the coordinator’s discretion to disregard unreliable information. “The requirement to “synthesize all available evidence” is likely a response to complaints by accused students that institutions have refused to consider “evidence” such as the results of polygraph tests.

Most significantly, the response to Question 6 states, "Once it decides to open an investigation that may lead to disciplinary action against the responding party, a school should provide written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy, including sufficient details, and sufficient time to prepare a response before any initial interview."

In other words, before an individual who is accused of sexual misconduct can even be interviewed, he or she must receive written notice from the institution of the factual allegations that constitute the potential violation of institutional policy, with details, and far enough in advance of the interview to provide a response. The answer to Question 6 helpfully explains that "sufficient details include the identities of the parties involved, the specific section of the student code of conduct allegedly violated, the precise conduct allegedly constituting the potential violation, and the date and location of the alleged incident.” In addition, the reporting and responding parties must have “timely and equal access to any information that will be used during informal and formal disciplinary meetings and hearings." Thus, the Title IX coordinator and investigator will be expected to provide their entire file to the students involved, as well as their attorneys.

Informal Resolutions of Complaints

Question 7: After a Title IX complaint has been open for investigation, may a school facilitate an informal resolution of the complaint?

Question 7 asks whether a school can "facilitate an informal resolution" after a Title IX complaint has been opened.  In response, the Q&A states that the parties can voluntarily agree to participate in informal resolution after full disclosure of the allegations. Absent, however, is the previous statement that, although an institution’s grievance process may include voluntary, informal methods such as mediation for resolving some types of sexual harassment complaints, the complainant must be notified of the right to end the informal process at any time and begin the formal stage of the complaint process. Also absent is the provision that, in cases involving allegations of sexual assault, mediation is not appropriate.

Decision-Making as to Responsibility

Question 8: What procedures it should a school follow to adjudicate a finding of responsibility for sexual misconduct?

The response to Question 8 addresses the procedures a school should follow to adjudicate a finding of responsibility for sexual misconduct. The Q&A states that the Title IX investigator(s) or separate decision makers, with or without a hearing, must make findings of fact and conclusions as to whether the facts support a finding of responsibility for a violation of the schools sexual misconduct policy. By “conclusions,” does the Q&A mean conclusions of law? It doesn’t say.

The parties are also to have the opportunity to respond to the findings, conclusions, and other information in the investigation report in writing before a decision of responsibility or at a live hearing to determine responsibility. As before, any process or rights made available to one party (such as the right to have an attorney or other advisor present during an interview or hearing) must also be made available to the other party. Like the answer to Question 6, the answer to Question 8 cautions schools to prevent institutional interests from interfering with the impartiality of the adjudication. In footnote 19, the Q&A also states, "The standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases."

Decision-Making After Disciplinary Sanctions

Question 9: What procedures should a school follow to impose a disciplinary sanction against a student found responsible for sexual misconduct violation?

Question 9 addresses the procedures an institution should follow before imposing disciplinary sanctions. Once a student is found responsible for a sexual misconduct violation, the Q&A states that the school should consider the following: (1) how best to enforce the school's code of conduct; (2) the impact of separating a student from his or her education; and (3) whether the sanction is a “proportionate” response to the violation.

Thus, a student who is found responsible could argue that the impact of separating him or her from the institution is so disproportionate to the offense as to be an inappropriate sanction. Whether the student is correct will be a completely subjective decision, potentially making public institutions vulnerable to claims that the sanction was arbitrary and capricious. While including the Clery Act's requirements that a postsecondary institution, in its annual security report, list all possible sanctions that may be imposed due to dating violence, domestic violence, sexual assault, or stalking, the response excludes rape and acquaintance rape. 

Notice of Outcome and Appeals

Question 10: What information should be provided to the parties to notify them of the outcome?

The answer to Question 10 retains the requirement that schools provide concurrent, written notice of the outcome of disciplinary proceedings to the parties. If the institution’s procedures allow for an appeal, this must also be included in the notice. The Q&A provides that the written notification must include “the rationale for the result and the sanctions," correctly citing 34 C.F.R. § 668.46 (k)(3)(iv). Although included in the Code of Federal Regulations, the requirement of a written explanation of the rationale for the proceeding’s outcome and the sanctions imposed is absent from many Title IX policies currently in existence.

Question 11: How may a school for the right to appeal the decision on responsibility and/or any disciplinary decision?

As was previously the case, the answer to Question 11 states a school may offer the right to appeal. It adds that this right may be limited to the responding party (i.e., the accused student) or both parties. However, the institution is not allowed to offer the right to appeal solely to the accusing student.

Existing Resolution Agreements

Question 12: In light of the rescission of OCR’s 2011 Dear Colleague Letter and 2014 Questions & Answers guidance, our existing resolution agreements between OCR and schools still binding?

The response to Question 12 states that schools that have entered into voluntary resolution agreements with the OCR to address deficiencies and violations identified during OCR investigations based on Title IX and its regulations remain binding and in effect. However, it also notes that such agreements are “fact-specific and do not bind other schools." Thus, these decisions cannot be considered as providing guidance.

Takeaways 

The next step in this process is notice-and-comment rulemaking. This is a process that can take one year, five years, or even more. Presently, institutions will need to carefully review their Title IX policies to ensure that they are consistent with the Department of Education’s new guidance.