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:

• 60-day investigation time frame rejected – OCR rejected the 60-day recommended time frame in the 2011 “Dear Colleague” letter for completing investigations and instead indicated “there is no fixed time frame under which a school must complete a Title IX investigation.” Rather, “OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.”

• Burden on school – According to OCR, “in every investigation conducted under the school’s grievance procedures, the burden is on the school—not on the parties—to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred and, if so, whether a hostile environment has been created that must be redressed.”

• Broad confidentiality requirements orders frowned upon – OCR indicated that “restricting the ability of either party to discuss the investigation (e.g., through “gag orders”) is likely to deprive the parties of the ability to obtain and present evidence or otherwise to defend their interests and therefore is likely inequitable.”

• Written notices explained – With respect to written notices of charges, OCR makes plain that “a school should provide written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved, the specific section of the code of conduct allegedly violated, the precise conduct allegedly constituting the potential violation, and the date and location of the alleged incident.” Along those lines, similar written notice is to be provided in advance of any student conduct hearing.

• Informal resolutions on the table – OCR opened up the possibility for “informal resolution,” even in sexual assault cases, if all parties “voluntarily agree to participate in an informal resolution that does not involve a full investigation and adjudication after receiving a full disclosure of the allegations and their options for formal resolution and if a school determines that the particular Title IX complaint is appropriate for such a process . . . .”

• “Clear and convincing” evidence standard acceptable – Similarly, schools are no longer required to use a “preponderance of evidence” standard and may instead use a “clear and convincing evidence” standard. Regardless, the standard employed should be “consistent with the standard the school applies in other student misconduct cases.”

• Limited appeals approved – Finally, OCR has confirmed that schools can be allowed to offer appeals solely to respondents.

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.