Department of Education Issues New Interim Guidance on Campus
Sexual Misconduct
New
Q&A will serve as interim guide until the conclusion of notice and comment
rulemaking
Widely
criticized 2011, 2014 guidance also withdrawn
WASHINGTON -- Building on her remarks from September 7,
2017, regarding the Department’s commitment to protecting all students from
discrimination, today U.S. Secretary of Education Betsy DeVos announced the
release of a new
interim Q&A for schools on how to investigate and adjudicate
allegations of campus sexual misconduct under federal law.
"This interim guidance will help schools as they work
to combat sexual misconduct and will treat all students fairly," said
DeVos. "Schools must continue to confront these horrific crimes and
behaviors head-on. There will be no more sweeping them under the rug. But the
process also must be fair and impartial, giving everyone more confidence in its
outcomes."
In the coming months, the Department intends to engage in
rulemaking on Title IX responsibilities arising from complaints of sexual
misconduct. The Department will solicit comments from stakeholders and the
public during the rulemaking process, a legal procedure the prior
administration ignored.
In the interim, the newly-released
Q&A on Campus Sexual Misconduct explains the Department’s current
expectations of schools, and the Department will continue to rely on its Revised
Sexual Harassment Guidance, which was informed by a public comment
process and issued in 2001, as well as the Dear Colleague Letter on Sexual
Harassment issued on January 25, 2006.
"In the coming months, hearing from survivors, campus
administrators, parents, students and experts on sexual misconduct will be
vital as we work to create a thoughtful rule that will benefit students for
years to come. We also will continue to work with schools and community leaders
to better address preventing sexual misconduct through education and early
intervention," DeVos added.
The Department of Education is also withdrawing
the Dear Colleague Letter on Sexual Violence dated April
4, 2011, and the Questions and Answers on Title IX Sexual
Violence dated April 29, 2014. The withdrawn documents ignored notice and
comment requirements, created a system that lacked basic elements of due
process and failed to ensure fundamental fairness.
DeVos concluded, "As I said earlier this month, the
era of rule by letter is over. The Department of Education will follow the
proper legal procedures to craft a new Title IX regulation that better serves
students and schools."
PRESS CALL
INFORMATION:
The Department will hold a background press call at 10:45
a.m. open to credentialed members of the media. Media interested in
participating should RSVP to press@ed.gov to
receive additional information.
FAQs on Updated Campus Sexual Misconduct Guidance
What is the purpose
of the Q&A on Campus Sexual
Misconduct?
- Describes a
school’s responsibility to address sexual misconduct complaints
- Discusses the relationship between Title IX and
the Clery Act
- Provides
examples of interim measures that may be appropriate under the
circumstances
- Summarizes what
procedures a school should follow to adjudicate a finding of responsibility
for sexual misconduct
- Describes what
constitutes an “equitable” investigation
- Explains a
school’s obligations concerning appeals
- Clarifies
appropriate evidentiary standards
- Informs schools
of their responsibilities concerning notifications to parties of the
outcomes of disciplinary proceedings
What are a school’s
obligations under Title IX regarding sexual misconduct?
- Schools must address sexual misconduct that is
severe, persistent or pervasive.
- Schools must
conduct a fair and impartial investigation in
a timely manner.
- Title IX
investigations must be led by a
person free of actual or reasonably perceived conflicts of interest and
biases.
- Schools must
designate a Title IX Coordinator.
Do schools have flexibility to establish fair procedures?
- Schools have the
discretion to apply either the
preponderance of the evidence standard or the clear and convincing
evidence standard.
- Schools are not
required to allow appeals; however, a school may choose to allow appeals solely by the responding party or
by both parties.
- Schools may
permit an informal resolution, such as mediation,
if it is appropriate and if all parties voluntarily agree.
- Schools should
provide written notice to the responding party of the allegations,
including sufficient details and with adequate
time to prepare a response before any initial interview.
- OCR recommends
schools provide concurrent, written notice of the outcome of disciplinary
proceedings to the reporting and responding parties.
Does the rescission
letter or the Q&A add legal requirements?
The rescission letter and Q&A do not add requirements to
applicable law.
Does the rescission
letter or the Q&A limit the right of a person to file a Title IX complaint?
No. A school must adopt and publish grievance procedures
that provide for a prompt and equitable resolution of complaints of sex
discrimination, including sexual misconduct.
Moreover, whether or not a student files a complaint of alleged sexual
misconduct or otherwise asks the school to take action, where the school knows
or reasonably should know of an incident of sexual misconduct, the school must
take steps to understand what occurred and to respond appropriately. In particular, when sexual misconduct is so
severe, persistent or pervasive as to deny or limit a student’s ability to
participate in or benefit from the recipient’s school’s programs or activities,
a hostile environment exists and the school must respond.
How can I get help
from OCR?
OCR offers technical assistance to help schools achieve
voluntary compliance with the civil rights laws it enforces and works with
schools to develop approaches to preventing and addressing discrimination. A
school should contact the OCR enforcement office serving its jurisdiction for
technical assistance.
Telephone: 800-421-3481
FAX: 202-453-6012; TDD: 800-877-8339
Email: OCR@ed.gov
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