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Author: Scott D. Schneider, JD

Campus Safety
Autism Spectrum Disorder
risk management and compliance
In a long-anticipated move, the United States Department of Education Office for Civil Rights (OCR) withdrew the Obama administration’s 2011 “Dear Colleague” Letter on sexual violence as well as its “Questions and Answers on Title IX and Sexual Violence.” It also issued a replacement “Q&A on Campus Sexual Misconduct,” which provides institutions with guidance on an interim basis pending formal regulations to be issued by the department. Summary of Changes The following are some of the more notable points from the new interim guidance: What Should Institutions Do Now? Not surprisingly, the interim guidance continues to require institutions covered by Title IX to respond to allegations of sexual assault. With that said, it also affords institutions more flexibility in how to approach several significant aspects of this work, while at the same time providing specific guidance on due process protections institutions must employ. Of course, it bears noting what the interim guidance is and what it is not. This is guidance telling schools how OCR will assess whether an institution is compliant with Title IX. Given the spate of litigation in this space, it is entirely possible courts may have more exacting standards. It is important for institutions to be familiar with jurisdiction-specific case law. Similarly, several states have specific legislation for how institutions must respond to sexual assault. Nothing about this guidance modifies those state-law obligations. While OCR has indicated it will issue formal regulations, it should be noted that the process may take anywhere from 12 to 18 months and may face court challenges depending on the extent of changes. This could further delay implementation of binding regulations. In the meantime, institutions will be well served by reviewing their Title IX policies and practices to assess whether they comply with this interim guidance, especially concerning issues dealing with notices to respondents. Similarly, where discretion has been afforded to an institution under the new guidance, schools should consider whether they will maintain things such as the preponderance of evidence standard or reciprocal appeal rights and, if so, why. The previous rationale—“We are required to do this by the 2011 ‘Dear Colleague’ Letter—will not suffice anymore. Scott Schneider, JD, leads the higher education practice group at Fisher & Phillips, LLP, where he provides counsel and litigation support for a host of higher education issues, including the handling of sexual assault allegations and Title IX violations, labor and employment matters, student affairs, Clery Act compliance and campus law-enforcement support, workplace safety and OSHA compliance, and more.