Higher education institutions may soon be asked to reconsider how they comply with Title IX obligations when a student or employee files a sexual assault complaint. The U.S. Department of Education (DOE) recently indicated it is looking into possible changes to its current guidance on campus sexual assault.

On July 13, 2017, Secretary of Education Betsy DeVos conducted a series of “listening sessions” on the impact of the DOE’s Title IX guidance. She met with students (both victims and those accused of offenses), victim rights groups, civil rights groups, university representatives, attorneys, and academics specializing in Title IX. The Department guidance currently in force is contained in “Dear Colleague” letters that require schools to investigate and adjudicate sexual assault complaints even if criminal authorities are pursuing the same matters.

One such pronouncement dating from the Obama administration includes a controversial instruction that schools adjudicate allegations of sexual violence on campus using the “preponderance of the evidence” standard when deciding whether to impose student discipline. Previously, many schools had used a more exacting standard that made it more difficult to establish culpability. The Department said in a statement that the goal of the listening sessions was to learn “how the Department can best fulfill its obligations to protect students under Title IX.”[1] Secretary DeVos’s comment after the sessions that “a system without due process ultimately serves no one in the end”[2] seemed to signal that the Department might be ready to change the proof standard and other aspects of the existing Title IX guidance.

The Department could rescind some of its guidance on campus sexual assault, as it did with its Title IX guidance on transgender students. In 2016, the Department said Title IX protected not only sex but gender identity and extended to transgender students the right to use the bathroom corresponding to their gender identity. After Secretary DeVos took office, the DOE rescinded this guidance in 2017 with a simple statement that the guidance was no longer in effect.  This led to speculation that the Department’s guidance on campus sexual assault might be next on the chopping block.

It does not appear, however, that the Department will rescind all of its guidance on how schools are to manage campus sexual assault complaints and investigations. Secretary DeVos recognized in her statements after the listening sessions that a complete reversal of Title IX policy would not be appropriate. [1]Candice Jackson, Acting Assistant Secretary, Office of Civil Rights for the DOE, also made statements to the National Association of College and University Attorneys at the end of June 2017 emphasizing that the Department is still committed to enforcing Title IX without suggesting that the Department’s 2011 Dear Colleague Letter will be rescinded.[2] The 2011 Dear Colleague Letter provides guidance on legal obligations in addressing sexual violence in school and on campuses. The letter begins with a discussion of Title IX’s requirements related to student-on-student sexual harassment and explains school’s responsibility to take immediate and effective steps to end sexual harassment and sexual violence.[3] Since publication, the 2011 Dear Colleague Letter has been a subject of debate, with some thinking it goes too far in enforcing Title IX on college campuses and some thinking it does not do enough.

Secretary Jackson did indicate that the Office of Civil Rights, the Department’s enforcement watchdog, may cease some current enforcement tactics, such as publishing lists of schools accused of violating Title IX, which Jackson called the “list of shame.”

In their statements, Secretaries DeVos and Jackson did not specify the changes the DOE may be considering, but the Department’s recent activity concerning Title IX suggests that changes are in the pipeline. It is unlikely that any college or university will be permitted to return to a policy of leaving these cases solely in the hands of criminal law enforcement, but there could be a loosening of federal prescriptions that would enhance institutional autonomy and discretion with respect to how schools address allegations of campus sexual assault.

This piece originally appeared on Littler’s website.

[1] DOE Press Release, supra note 1.

[2] See  Doug Lederman, ‘A New Day at OCR’, Insider Higher Ed (June 28, 2017), https://www.insidehighered.com/news/2017/06/28/trump-administration-civil-rights-officials-promise-colleges-fairer-regulatory

[3] U.S. Department of Education, Office for Civil Rights. (Apr. 4, 2011). “Dear colleague” letter guidance, supplementing the OCR’s revised sexual harassment guidance (2011),  http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html.

[1] Press Release, U.S. Department of Education, Secretary DeVos to Host Title IX Listening Sessions (June 12, 2017), https://www.ed.gov/news/press-releases/secretary-devos-host-title-ix-listening-sessions.

[2] See Sheryl Gay Stolberg, DeVos Says She Will Revisit Obama-Era Sexual Assault Policies, The New York Times (July 13, 2017), https://www.nytimes.com/2017/07/13/us/devos-college-sexual-assault.html.

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Emily Haigh

Littler Mendelson

Emily Haigh is an experienced trial attorney who counsels and defends management on a wide variety of employment matters, including Title IX of the Education Amendments of 1972, Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act (ADEA). Prior to entering private practice, Emily served as a federal criminal prosecutor concentrating in sexual assault. Emily is a member of Littler’s Higher Education practice group, where she focuses on Title IX sexual assault investigations and Title IX litigation.

Ivie A. Guobadia

Littler Mendelson

Ivie A. Guobadia represents employers in all aspects of employment litigation, including matters involving race, age, sex and disability discrimination and retaliation. She has successfully represented clients in a variety of different forums, including federal, state and city courts. Her practice focuses on representing and counseling employers in all aspects of employment discrimination litigation as well as emerging issues in Title IX compliance and litigation.

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