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By: William H. Buechner, Jr.
Last week, the Department of Education formally withdrew the controversial “Dear Colleague” Letter on Sexual Violence issued in 2011 and the 2014 Questions and Answers on Title IX Sexual Violence. As discussed in our recent blog here, the withdrawal of this guidance was expected in light of Education Secretary Betsy Devos’s statements earlier this month indicating that the Department of Education would be making substantial changes to the Obama-era guidance concerning how schools should respond to allegations of sexual violence on campus.
Secretary DeVos also announced last week the issuance of an interim Q&A on Campus Sexual Misconduct addressing how schools should investigate and adjudicate allegations of sexual violence on campus. This interim Q&A guidance can be reviewed here. The interim Q&A also indicates that the DOE’s Office of Civil Rights will look to pre-Obama era guidance, such as the Revised Sexual Harassment Guidance (66 Fed.Reg. 5512) issued in 2001 and the Dear Colleague Letter on Sexual Harassment issued in 2006, as well as the Clery Act and its accompanying regulations.
As one might expect, there are several significant differences between the 2011 “Dear Colleague” Letter and the interim Q&A. For example, whereas the “Dear Colleague” letter stated that schools should apply a preponderance of the evidence standard of proof to allegations of sexual violence on campus, the interim Q&A states that schools may apply either a preponderance of the evidence standard or a clear and convincing evidence standard. There is one important caveat, however. The interim Q&A states that a school must apply the same standard of proof applied in other types of student misconduct cases. In other words, a school may not apply a clear and convincing evidence standard to other types of alleged student misconduct and then apply a preponderance of the evidence standard to allegations of sexual violence.
Also, whereas the “Dear Colleague” Letter stated that schools should not allow allegations of sexual violence to be resolved informally, the interim Q&A states that schools may facilitate an informal resolution, including mediation, between the reporting party and the responding party. In addition, the interim Q&A provides that schools should provide written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy that provides sufficient detail and sufficient time to prepare for an initial interview. This includes providing the identities of the parties involved, the specific section of the code of conduct allegedly violated, the exact conduct the responding party is being accused of engaging in, and the date and location of the alleged incident(s).
Secretary DeVos also announced last week that the DOE intends to engage in formal rulemaking regarding schools’ Title IX responsibilities in responding to allegations of sexual violence on campus, but she did not provide any timetable for the promulgation of proposed regulations. In the meantime, the interim Q&A will provide guidance as to how the OCR will assess a school’s compliance with Title IX.
We will continue to monitor the DOE’s progress in drafting proposed regulations, as well as how the OCR applies the guidelines set forth in the interim Q&A.
If you have any questions or would like more information, please contact William Buechner at [email protected].