In a brief three-page document issued September 22, 2017, the Trump administration accomplished the destruction of two Obama-era legal concepts that appeared anathema to the new administration: (1) Title IX protection for lesbian, gay, bisexual, and transgender students, and (2) the requirement that educational institutions receiving federal funding use the preponderance of evidence standard in adjudicating complaints of sexual harassment and sexual violence.
The dismantling began with the U.S. Department of Education’s rescinding of the May 13, 2016 Dear Colleague Letter (DCL) on Transgender Students, issued jointly by the Office for Civil Rights (OCR) and the Department of Justice (DOJ). The triumvirate of erasure was completed by the USDOE’s recent rescinding of the April 4, 2011 Dear Colleague Letter on Sexual Violence and the April 29, 2014 Questions and Answers on Title IX and Sexual Violence.
In addition to removing the 2011 and 2014 guidance documents, the current administration stressed that the January 19, 2001 Revised Sexual Harassment Guidance document is still binding. That document explained that sexual harassment is a form of discrimination based on sex, and therefore, violates Title IX. However, the 2001 Guidance also emphasized that the sexual harassment must be sufficiently serious to limit or deny the harassed student the ability to participate in or benefit from the school’s educational program. The 2001 guidance document specifically noted that Title IX does not prohibit discrimination on the basis of gender orientation. No mention was made of bisexual or transgender students.
The September 22, 2017 DCL announcing withdrawal of the 2011 and 2014 guidance documents provided no expansion of the 2001 guidance, but simply stated that DOE will continue to rely on that guidance.
Candice Jackson, Acting Assistant Secretary of OCR, described the 2011 and 2014 withdrawn documents as possibly “well-intentioned,” but depriving the rights of many students, accuser and accused, and burdening educational institutions with a “confusing and counterproductive” set of regulatory mandates. Jackson’s criticisms were aimed principally at OCR’s insistence that colleges and universities must use the preponderance of evidence standard in adjudicating complaints of sexual harassment and sexual violence, or risk losing Title IX funding. U.S. Secretary of Education Betsy DeVos had recently been highly critical of the preponderance of evidence standard in campus adjudications of sexual misconduct, stating repeatedly that such a low standard of guilt, the “more likely than not” standard, created a bias against the accused perpetrator.
The 2017 DCL was accompanied by a Q&A on Campus Sexual Misconduct. The first question involved a school’s responsibility in addressing sexual misconduct. Here, as in the 2001 document, the stress was on the nature of the sexual misconduct being “so severe, persistent, and pervasive” as to deny or limit a student’s participation in or benefit from the school program and establish a hostile environment. Without elaboration on its relevance, the Q&A noted that schools must apply their rules according to court precedents interpreting the First Amendment guarantees of free speech.
The Q&A also discussed provisions of the Clery Act (the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990), with which institutions of higher education that participate in federal student aid programs must conform. The Clery Act was amended as part of the 2013 Reauthorization of the Violence Against Women Act (VAWA). Neither VAWA nor its amended regulations required that institutions use the preponderance of evidence standard in adjudicating sexual misconduct complaints, merely requiring that institutions state the standard being used (34 C.F.R. § 668.46 (k)(1)(ii)). In a footnote explaining the required evidentiary standard to be used, the 2017 Q&A states that the standard for evaluating a claim of sexual misconduct should be “consistent with the standard the school applies in other student misconduct cases.” Using different evidentiary standards in sexual misconduct cases suggests a discriminatory purpose, the 2017 footnote suggests, in particular, “an effort to tilt the playing field against accused students.”
The 2017 Q&A describes specific interim measures that schools must take when a complaint of sexual misconduct is received. These interim measures are similar to those described in the 2014 Q&A.
However, there are significant differences from prior guidance. The 2017 Q&A removes the former 60-day time limit within which schools were required to complete Title IX investigations. The burden of investigatory responsibility is on the school, not on the parties involved, to gather sufficient evidence so that a fair, impartial outcome may result. The 2017 Q&A states that an equitable investigation requires a “trained investigator,” to analyze and document the evidence for synthesis so that reliable determinations result. All parties must receive written notice of the allegations with sufficient details and time to respond, and a written report should summarize the evidence on both sides. Informal resolutions are allowed, including mediation, when both sides agree. Appeals, if provided by school policies, must be available equally to both parties.
The Q&A confirms that existing Resolution Agreements between OCR and schools are still binding. Those agreements, the Q&A asserts, are based on deficiencies and violations identified by OCR and unique to the schools which voluntarily undertook to remedy the deficiencies in order to comply with Title IX and its implementing regulations.
The 2017 DCL and its Q&A restores the letter of the law established in the Reauthorization of VAWA and its implementing regulations. Colleges and universities no longer must use the preponderance of evidence standard in adjudicating allegations of sexual misconduct. They are free to use the stricter standard of evidence, clear and convincing evidence, as long as they are consistent in using the same evidentiary standards as in any cases of student misconduct. The evidentiary standards used must be identified.However, the protection of Title IX is now in question for lesbian, gay, bisexual, and transgender individuals in all levels of education.
In addition, the 2001 guidance emphasizing that sexual harassment must be sufficiently serious to limit or deny the harassed student the ability to participate in or benefit from the school’s educational program may raise the burden of proof for the accuser.
The Trump administration promises notice and comment procedures for future DCLs. Perhaps lost rights can be resurrected in the process.
So What Does This Mean for Higher Education?
College Title IX officers are encouraged to review and modify their policies and procedures to conform to the latest direction from Washington. In particular, attention to the standard of care applied in sexual assault cases and qualified investigators are critical for compliance with common DOE policy. If you have any questions, please consult with your legal counsel or one of the higher education attorneys at KingSpry.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.