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Dear Colleague:
The purpose of this letter is to inform you that the
Department of Education is withdrawing the statements of policy and guidance
reflected in the following documents:
- Dear Colleague Letter on Sexual Violence, issued
by the Office for Civil Rights at the U.S. Department of Education, dated April
4, 2011.
- Questions and Answers on Title IX and Sexual
Violence, issued by the Office for Civil Rights at the U.S. Department of
Education, dated April 29, 2014.
These guidance documents interpreted Title IX to impose new
mandates related to the procedures by which educational institutions
investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct. The 2011 Dear Colleague Letter required
schools to adopt a minimal standard of proof—the preponderance-of-the-evidence
standard—in administering student discipline, even though many schools had
traditionally employed a higher clear-and-convincing-evidence standard. The Letter insisted that schools with an
appeals process allow complainants to appeal not-guilty findings, even though
many schools had previously followed procedures reserving appeal for accused
students. The Letter discouraged
cross-examination by the parties, suggesting that to recognize a right to such cross-examination
might violate Title IX. The Letter
forbade schools from relying on investigations of criminal conduct by law-enforcement
authorities to resolve Title IX complaints, forcing schools to establish policing
and judicial systems while at the same time directing schools to resolve
complaints on an expedited basis. The
Letter provided that any due-process protections afforded to accused students
should not “unnecessarily delay” resolving the charges against them.
Legal commentators have criticized the 2011 Letter and the
2014 Questions and Answers for placing “improper pressure upon universities to
adopt procedures that do not afford fundamental fairness.”[1] As a result, many schools have established procedures
for resolving allegations that “lack the most basic elements of fairness and
due process, are overwhelmingly stacked against the accused, and are in no way
required by Title IX law or regulation.”[2]
The 2011 and 2014 guidance documents may have been
well-intentioned, but those documents have led to the deprivation of rights for
many students—both accused students denied fair process and victims denied an
adequate resolution of their complaints.
The guidance has not succeeded in providing clarity for educational
institutions or in leading institutions to guarantee educational opportunities
on the equal basis that Title IX requires.
Instead, schools face a confusing and counterproductive set of
regulatory mandates, and the objective of regulatory compliance has displaced
Title IX’s goal of educational equity.
The Department imposed these regulatory burdens without
affording notice and the opportunity for public comment. Under these circumstances, the Department has
decided to withdraw the above-referenced guidance documents in order to develop
an approach to student sexual misconduct that responds to the concerns of
stakeholders and that aligns with the purpose of Title IX to achieve fair
access to educational benefits. The
Department intends to implement such a policy through a rulemaking process that
responds to public comment. The
Department will not rely on the withdrawn documents in its enforcement of Title
IX.
The Department refers you to the Q&A on Campus Sexual Misconduct, issued contemporaneously with
this letter, and will continue to rely on its Revised Sexual Harassment Guidance, which was informed by a
notice-and-comment process and issued in 2001,[3]
as well as the reaffirmation of that Guidance
in the Dear Colleague Letter on Sexual Harassment issued January 25, 2006.[4] As always, the Department’s enforcement
efforts proceed from Title IX itself[5]
and its implementing regulations.[6]
In the forty-five years since the passage of Title IX, we
have seen remarkable progress toward an educational environment free of sex
discrimination. That progress resulted
in large part from the vigorous enforcement of Title IX by the Office for Civil
Rights at the Department of Education.
The Department remains committed to enforcing these critical protections
and intends to do so consistent with its mission under Title IX to protect fair
and equitable access to education.
The Department has
determined that this letter is a significant guidance document under the Final
Bulletin for Agency Good Guidance Practices of the Office of Management and
Budget, 72 Fed. Reg. 3432 (Jan. 25, 2007). This letter does not add
requirements to applicable law.[7]
Sincerely,
/s/
Candice Jackson
Acting Assistant Secretary for Civil Rights
U.S. Department of Education
[1]
Open Letter from Members of the Penn Law School Faculty, Sexual Assault Complaints: Protecting Complainants and the Accused
Students at Universities, Wall St. J.
Online (Feb. 18, 2015), http://online.wsj.com/public/resources/documents/2015_0218_upenn.pdf
(statement of 16 members of the University of Pennsylvania Law School faculty).
[2] Rethink
Harvard’s Sexual Harassment Policy, Boston
Globe (Oct. 15, 2014) (statement of 28 members of the Harvard Law School
faculty); see also ABA Criminal Justice Section Task Force on
College Due Process Rights and Victim Protections, Recommendations for Colleges
and Universities in Resolving Allegations of Campus Sexual Misconduct
(2017); American College of Trial
Lawyers, Task Force on the Response of Universities and Colleges to Allegations
of Sexual Violence, White Paper on Campus Sexual Assault Investigations
(2017).
[3] The Revised
Sexual Harassment Guidance is available at
https://www2.ed.gov/about/offices/list/ocr/docs/shguide.html.
[4] The 2006 Dear Colleague Letter is available at
https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html.
[5] 20
U.S.C. §§ 1681-88.
[6] 34
C.F.R. § 106.1 et seq.; see also 34 C.F.R. § 668.46(k)
(implementing requirements of the Violence Against Women Act).
[7] If
you have questions or are interested in commenting on this letter, please
contact the Department of Education at ocr@ed.gov or 800-421-3481 (TDD:
800-877-8339).
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