The U.S. Department of Education (the “Department”) issued a Dear Colleague Letter (“DCL”) on September 22 withdrawing two significant guidance documents regarding the Department’s interpretation and enforcement of Title IX and its implementing regulations. The Department also issued interim guidance in the form of a “Q&A on Campus Sexual Misconduct” describing how its Office for Civil Rights (“OCR”) will assess an educational institution’s compliance with Title IX until a previously announced notice and comment rulemaking process is complete. See our September 11 client alert on the announcement of a new Title IX rulemaking.

Specifically, the September 22, 2017, letter withdraws both the DCL on Sexual Violence issued by OCR on April 4, 2011, and the Questions and Answers on Title IX and Sexual Violence issued on April 29, 2014. Those Obama administration guidance documents had interpreted Title IX to require, among other things, the adoption by schools of a “preponderance of the evidence” standard when administering disciplinary proceedings. They also established procedural requirements and prohibitions, including the mandatory availability of appeal for not-guilty findings (if appeal was otherwise available in the school’s process), the discouragement of mutual cross-examination of and by the parties, and a presumption that processes lasting longer than 60 days did not satisfy the Title IX requirement for prompt and equitable resolutions of sexual misconduct matters.

Citing criticism that the Obama-era guidance lacked key elements of due process and fundamental fairness, the Department now states that its earlier interpretation “has not succeeded in providing clarity for educational institutions or in leading institutions to guarantee educational opportunities on the equal basis that Title IX requires.” Therefore, the Department announced that while it is withdrawing those more recent guidance documents, it will continue to rely on the Revised Sexual Harassment Guidance issued in 2001 (“2001 Revised Guidance”) as well as the January 25, 2006, DCL on Sexual Harassment.

Under this interim guidance, schools will have greater institutional flexibility in determining the procedures that they employ to comply with Title IX. Importantly, educational institutions continue to have the following responsibilities in relation to sexual misconduct complaints:

• Where a school knows or reasonably should know of a sexual misconduct incident, it must take steps to determine the facts and respond appropriately, including through its mandatory Title IX coordinator and other responsible employees;
• Obligations to compile certain statistics around dating violence, including the reporting and programming obligations imposed by 2013 reauthorization of the Violence Against Women Act and its resulting amendments to the Clery Act, remain in force;
• Interim measures offered to students during the investigation of a Title IX complaint may not be made available to only one party, must be individualized according to student need, and may not be based on “operating assumptions that favor one party over another”;
• While there is no “fixed time frame” under which an investigation must be completed, the school must publish grievance procedures that offer a “prompt and equitable” resolution of sexual discrimination complaints, under a six-factor test that is summarized in the interim guidance and outlined in the 2001 Revised Guidance;
• Informal resolution procedures, including mediation, may be employed by the school if all parties agree voluntarily to such resolution, and if the nature of the complaint is appropriate for such procedures;
• Schools must avoid bias and conflicts of interest in their adjudicatory processes, and should avoid “sex stereotypes and generalizations” that may violate Title IX. Procedural resources, including the availability of an attorney or advisor, must be made available to both parties if available to either;
• Disciplinary sanctions must be proportional to the magnitude of the violation;
• Written notice of the outcome of a Title IX disciplinary proceeding should be provided concurrently to both parties, and while schools may offer the right of appeal to both parties, neither party, or solely to the responding party, they may not offer the right of appeal solely to the complaining party; and
• Existing resolution agreements entered into between institutions and OCR under the now-rescinded 2011 DCL and 2014 Questions & Answers guidance documents remain in full force and effect, and continue to be binding on the particular schools that entered into them. They do not, however, impose obligations on other schools, including those that may be similarly situated but which have not yet entered a resolution agreement with the Department.

The recently issued DCL and interim guidance—in conjunction with the 2001 Revised Guidance, the 2006 DCL on Sexual Harassment and the 2015 DCL on Title IX coordinators— now substantially comprise the Department’s current interpretation of Title IX and resulting enforcement mandates. Any or all of the foregoing may be altered under future guidance or the forthcoming Title IX notice and comment rulemaking, the timeline of which has not yet been announced and the outcome of which we cannot predict.