This morning, the Department of Education’s Office for Civil Rights (OCR) released a Dear Colleague Letter (DCL). In it, the Department announced its withdrawal of guidance reflected in OCR’s 2011 Dear Colleague Letter on Sexual Violence and 2014 Questions and Answers on Title IX and Sexual Violence. As Education Secretary Betsy DeVos announced in early September, the Department will establish a rulemaking process that responds to public comment. Despite these efforts, the Department issued a Q & A on Campus Sexual Misconduct in tandem with the letter.

Once again the Department of Education reiterated its desire to remove focus on the rights of victims of sexual violence from its guidance, and, instead, implied that providing such support removes equity from the process for both reporting and responding parties.

Advocacy for victims does not occur at the expense of rights for the accused.  In fact, ensuring equity for victims in campus proceedings further supports and upholds equity for those accused of sexual assault and disciplinary process outcomes overall. It is important to remember that the process and its outcome impact both parties, and, as a result, any guidance or practice that does not afford equity to both the complainant and the respondent, is, in fact, an unfair process and undermines both the letter and spirit of Title IX.

Here are a few important takeaways from the notice. (Key aspects of the document are underlined; followed by Clery Center context or comments.)

• The Department will still rely on its 2001 Revised Sexual Harassment Guidance which went through a notice-and-comment process. This includes the current definition of responsible employees, who are still required to report and institutions must still respond if the institution knows or reasonably should know of an incident of sexual misconduct.
• The Q&A reinforces the function of interim measures. Also referenced as accommodations under the Clery Act, these services make sure the parties have necessary support prior to or during an investigation. As a reminder, under the Clery Act, it is not necessary for an individual to file a formal complaint in order to access these accommodations (such as living, academic, transportation, or working accommodations).
• The institution’s process must be prompt and equitable and conducted by trained individuals; however, the letter notes that there is no fixed time frame under which a school must complete a Title IX investigation. Clery also requires a prompt, fair, and impartial disciplinary process. Although Clery does not establish timeframes either, a prompt proceeding per Clery is one that is “completed within reasonably prompt timeframes designated by the institution’s policy, including a process that allows for extension of timeframes for good cause, with written notice to the accuser and the accused of the delay and the reason for the delay” with “timely and equal” notice of meetings and access to any information that will be used during informal and formal disciplinary meetings and hearings. Your policies should specify this timeframe, as should your institution’s annual security report.
• The Q&A allows for informal resolution of complaints. Mediation was not permitted in previous guidance, and despite the withdrawal of previous guidance, it’s extremely important to note that, even in the updated Q&A, all parties must voluntarily agree to participate in an informal resolution in order to implement such a process.
• The document specifies that the findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing standard. The standard used in such cases must be the same as the standard used for all other student conduct cases. We’d encourage institutions to remember that about 70% of institutions were using the preponderance standard prior to the 2011 letter. The White Paper “Title IX and the Preponderance of the Evidence Standard” provides the history of this standard in civil rights law and past enforcement of Title IX.
• The document notes that if a school chooses to allow appeals from its decisions regarding responsibility and/or any disciplinary sanctions, the school may choose to allow appeal (i) solely by the responding party or (ii) by both parties, in which case any appeal procedures must be equally available to both parties. Although neither Clery nor Title IX require an appeal process, Clery does require a prompt, fair, and impartial process “from the initial investigation to the final result”, which includes any appeal processes, if they exist.

Guidance is important, but it’s also important that such guidance does not leave room for campus processes to be manipulated or abused to only benefit one party. As a result, the public comment process will play an important role in giving voice to all individuals impacted by sexual violence.

While the Clery Act and Title IX both speak to policies and procedures for campus response to sexual misconduct, they have separate and distinct purposes and functions (transparency and consistency across campuses for Clery and civil rights protections for Title IX). Both of these laws are needed to establish comprehensive processes on campus. We look forward to providing our feedback to the Department on where the previous Title IX guidance (2011 and 2014) provided important information to colleges and universities that ensured the prompt, fair, and impartial process required by both Title IX and the Clery Act.