NEW TITLE IX GUIDANCE RELEASED

the Department issued new guidance for institutions about how it will assess a school’s compliance with Title IX

Title IX protects people from discrimination based on sex in education programs or activities at more than 7000 postsecondary institutions that receive Federal Financial Assistance. Last month, the U.S. Department of Education’s Office For Civil Rights announced they were withdrawing some Title IX policies and guidance issued under the Obama administration. The guidance that has been rescinded includes an April 4, 2011 Dear Colleague Letter on Sexual Violence and an OCR Q&A on Title IX and Sexual Violence from 2014. The Department also announced they will readdress the standards for Title IX through the negotiated rulemaking process later this year.

In the interim, the Department issued new guidance for institutions about how it will assess a school’s compliance with Title IX. A seven page document released by ED’s Office for Civil Rights, outlines a school’s responsibilities to address sexual misconduct.

The biggest change at issue is a change in the procedures a school should follow for resolving cases of reported sexual misconduct. Under the old guidance, schools were required to use the “preponderance of the evidence” standard when adjudicating and resolving allegations of student on student misconduct. Under the new guidance, findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.

Some supporters of the move to rescind these rules have long called for a higher standard of proof to be used in cases of rape and sexual assault such as those used by criminal courts where the burden is proof for vicious crimes is “beyond a reasonable doubt”. Supporters of the new OCR guidance see this as an opportunity for individuals accused of committing these crimes to get due process.

Opponents and advocates of victims defended the preponderance of the evidence standard say that requiring colleges to judge a case based on the higher evidentiary standard of beyond a reasonable doubt is extremely difficult. Colleges are not courts after all and it’s important to remember that schools are conducting disciplinary hearings, not civil or criminal court cases.

So what else changed?

Under the interim guidance, schools have some new flexibility including the discretion to apply either the preponderance of the evidence standard or the clear and convincing standard. Although schools are not required to allow appeals, they may choose to allow appeals solely from the accused or both parties. Mediation is also now permissible if a school deems it appropriate, and both parties agree voluntarily.

The OCR also made several recommendations to schools including one that schools should provide written notice to the accused, including sufficient details and with adequate time to prepare a response before initiating any proceedings. The OCR also recommends that schools provide written notices of the outcome of disciplinary hearings to both parties, at the same time.

No date has been set for the upcoming comment and negotiation periods.