On September 22, 2017, the U.S. Department of Education issued a new FAQ interim guidance document on investigating and adjudicating cases of sexual misconduct, and formally withdrew the guidance that had been issued in 2011 and 2014 on that topic.
This new guidance poses many new issues and unanswered questions for K-12 schools regarding the process and scope of the new recommended procedures.
For instance, the Q&A specifically states that it applies to K-12 schools, however, many of the processes described, within, are processes that may be difficult to implement at the K-12 level. The new guidance states that schools are expected to provide “written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview.”
At the K-12 level, investigations of misconduct generally involve interviewing the alleged perpetrator immediately or as soon as possible. Rarely, if ever, are students provided with advance details of the allegations and time to prepare a response. Indeed, many administrators choose to conduct their interview with the alleged perpetrator quickly specifically to prevent him/her from having an opportunity to craft a falsified response.
Further, providing formal written notice will likely overly-legalize initial investigation proceedings by making parents feel as if they may need to get an attorney involved in the process.
The new guidance also changes the process required of schools with regards to the burden of proof that is applicable in sexual misconduct cases.
Under the former guidance, schools were required to use a “preponderance of the evidence” standard, which is sometimes referred to as “balancing the probabilities.” This is the minimum standard that is required in Pennsylvania for student expulsion cases. A school board need only decide that it is more likely than not that the incident occurred and that the accused is the actual perpetrator.
In some schools, however, particularly in higher education, a higher standard is used for student misconduct cases. The previous DOE guidance had been challenged by some courts in cases where the preponderance of the evidence standard was used in a sexual misconduct case but a higher standard was used in all other administrative adjudications.
Many challenged this concept, due to the fact that a lessened standard in sexual misconduct cases led to the inevitable result that sexual misconduct cases required less proof than other disciplinary cases, making findings against the accused in those cases more likely.
Challenging the basic fairness of using a different standard exclusively for sexual misconduct cases, a Massachusetts federal court stated:
The lower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.
Secretary DeVos has been quite vocal in emphasizing that the new guidance has been issued to ensure fairness for both the complainants and the accused, and, to that end, the new procedures permit schools to use a heightened standard if it is consistent with the standard that they use in other cases.
The new guidance says that the standard of proof in sexual misconduct cases should be consistent with the standard used in other student misconduct cases.
Thus, if a school uses a “preponderance of the evidence” standard in its other cases, as many Pennsylvania schools use, it may continue to do so in sexual misconduct matters. However, where a school uses a “clear and convincing evidence” standard in their student misconduct cases, which requires that the adjudicating body have a greater degree of certainty about the culpability of the accused, that standard must also be used in sexual misconduct cases.
Finally, the new guidance makes clear that, while a formal complaint process must be available, individuals alleging sexual misconduct are not required to file a complaint with the school. Individuals alleging sexual abuse are may still seek legal remedy under Title IX and are not required to participate in the complaint process as a prerequisite. Because of this, schools should always investigate where they suspect or have reason to know of instances of sexual misconduct on campus. The new guidance dictates that schools must address sexual misconduct on campus if it is “severe, persistent, or pervasive.” Thus, while schools should have policies establishing specific procedures for those seeking to file a formal complaint of on-campus sexual misconduct, schools have a duty to investigate those lacking formal complaints, as well.
Bottom Line for Schools
Because of the nature of the guidance and its purported joint-applicability to both the K-12 and post-secondary levels, more questions are likely to arise. The U.S. Department of Education has indicated that a formal rule-making process will follow. Formal regulations should help to establish more specificity and certainty.
For now, while the new FAQ serves as non-regulatory guidance, only, and not law, it is issued by the Office for Civil Rights, which is formally tasked with investigating many Title IX complaints. Thus, schools should follow the procedures outlined in the FAQ to the greatest extent possible. Where questions or implementation issues arise (such as the above-identified issue regarding required advance written notice for alleged perpetrators), school administrators should contact their legal counsel to determine the most legally-defensible course of action.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.