Erin Galbally, Clark Hill

The U.S. Department of Education Office of Civil Rights (OCR) is expected to release proposed guidelines for addressing sexual assault under Title IX of the Education Amendments of 1972 this spring, ushering in the latest round of changes facing educational institutions under the Trump administration. In September 2017, OCR rolled back Obama-era guidance with the issuance of an interim document titled “Q&A on Campus Sexual Misconduct.” The document sets forth new and somewhat confusing expectations for educational institutions. The most significant of those expectations includes modification of the standard of proof needed to find someone responsible for sexual assault, the suggestion that mediation is now an appropriate alternative to a full investigation and adjudication, modification of appellate rights, and a loosening of timing requirements for the completion of investigations. The new rules are anticipated to build on the themes contained in the September question-and-answer session even as at least one lawsuit challenging the validity of those changes remains pending in federal court in California.

Title IX Before OCR's Q&A on Sexual Misconduct

Title IX was enacted to promote equity in educational settings, and prohibits sex-based discrimination, including sexual violence, sexual harassment, and hostile environment based on sex. All schools receiving federal funds are required to comply with Title IX's mandates.

Under the Obama administration, Title IX was guided by a  2011 “Dear Colleague” letter on responding to sexual violence and a question-and-answer document issued in 2014. Combined, those documents set forth detailed directives on Title IX compliance and made it clear that failure to adhere to those mandates would compromise the continued receipt of federal funds. Specifically, schools were instructed to apply a “preponderance of the evidence” standard in administering student discipline, which required a finding that the occurrence of misconduct was more likely than not. Schools were instructed to complete investigations within 60 days, and mediation was deemed inappropriate, “even on a voluntary basis,” were cases involved allegations of sexual assault. Additionally, educational institutions were urged to have an appeals process available to both parties. These core hallmarks of Title IX administration changed significantly in September 2017, when the Department of Education took the long-awaited step of rescinding the Obama-era 2011 Dear Colleague Letter and 2014 guidance and replacing those documents with the Q&A.

The September 2017 Q&A

The OCR withdrew the existing 2011 and 2014 guidance on the basis that the department imposed regulatory burdens without affording notice and the opportunity for public comment. The 2017 Q&A was positioned as an interim document as the department engages in “rulemaking on the topic of schools' Title IX responsibilities concerning complaints of sexual misconduct, including peer-on-peer sexual harassment and sexual violence.” Similar to the Obama-era Title IX policies, the Q&A calls for each school to designate a Title IX coordinator, comply with the Clery Act regulations when addressing allegations of dating violence, domestic violence, sexual assault or stalking and adopt and publish grievance procedures that provide for a prompt and equitable resolution of complaints of sex discrimination, including sexual misconduct. Beyond similarities, however, the 2017 Q&A signals a significant departure from the Title IX policies that controlled during the prior administration. The changes have been interpreted to favor the accused, whereas the Obama guidance was perceived to favor the rights of the accuser. For instance, schools are now entitled to apply “either a preponderance of the evidence standard or a clear and convincing evidence standard” in assessing whether discipline is warranted. The clear and convincing evidentiary standard is considered to require a higher showing of proof than the preponderance standard, which has resulted in an outcry from advocates for sexual-assault victims that it will now be more difficult for victims to prove their case. The Q&A also reversed the Obama-era prohibition on mediation for sexual assault cases, permitting schools to facilitate an informal resolution process provided all parties are in agreement. Additionally, colleges no longer have to allow for appeals, and should they elect to do so, they can determine whether to afford both parties the right or just the accused. Finally, instead of requiring that schools adhere to a strict 60-day investigation window, the Q&A provides that there is “no fixed time frame under which a school must complete a Title IX investigation.” Rather, the Q&A explains that the investigation timeline will be monitored by the OCR, which is tasked with “evaluating a school's good-faith effort to conduct a fair, impartial investigation in a timely manner.” These fundamental changes are expected to be formally memorialized in the soon to be released proposed guidance.

The Pending Legal Challenge

In January, advocates for sexual assault victims filed suit in the U.S. District Court for the Northern District of California seeking to overturn the rescission of the 2011 Dear Colleague Letter and 2014 guidance. In SurvJustice v. DeVos, (Docket No. 3:18-cv-00535), the plaintiffs allege that the Education Department's actions in September discriminated against students who report sexual assault. The complaint asserts that the department and its leaders, including Secretary of Education Betsy DeVos, violated the Fifth Amendment's due process protections and the Administrative Procedure Act. The case, pending before U.S. Magistrate Judge Jacqueline Scott Corley, is still in its infancy. It is expected that the department will issue its proposed guidance before the parties begin discovery. It is also anticipated that the new guidance will spark a fresh round of legal challenges. In the meantime, schools that receive federal funds should be on notice that new Title IX enforcement directives are imminent.

Erin C. Galbally, senior attorney at Clark Hill, concentrates her practice on complex labor, employment and Title IX matters. Contact her at [email protected].