Education Secretary Betsy DeVos recently announced the withdrawal of Obama-era guidelines regarding college sexual assault and set forth new directives in the Department of Education’s 2017 Q&A on Campus Sexual Misconduct.[1] The interim guidelines, which remain in effect while the notice and comment period commences, chart a new course for sexual misconduct cases that DeVos purports will “help schools” and “treat all students fairly.”[2]

In rescinding the 2011 Dear Colleague Letter[3] and the subsequent 2014 Questions & Answers on Title IX and Sexual Violence,[4] the new guidelines have removed a sixty-day completion deadline for colleges’ investigations of sexual assault, instead, directing that the investigations must only be “reasonably prompt.” But, the new directive emphasizes that Title IX mandates fair, impartial investigations, performed in a timely manner.

Most controversial is the directive affording schools the option of utilizing a higher standard of proof for hearings on sex-based misconduct. Gone is the requirement from the 2011 Dear Colleague letter requiring the “preponderance of the evidence” standard in school grievance procedures. Now, colleges have the right to choose whether to use the “preponderance of the evidence” or the tighter “clear and convincing evidence” standard. Some universities, including Harvard University,[5] the University of Colorado,[6] and the University of Virginia,[7] announced they will maintain the less stringent “preponderance” standard, at least in the interim.

While colleges are now afforded more options and leeway for sexual assault investigations, school administrators should not take a breath of relief just yet. The requirement that schools undergo a fair, impartial, and timely investigation into allegations of sexual assault remains, along with the likelihood for litigation initiated by dissatisfied students – either the accused or accuser. Regardless of the standard used in sexual misconduct hearings, Title IX demands, and the recent directive reinforces, the importance of “equitable” investigations performed by experienced investigators, free from any conflict or bias. The 2017 Q&A instructs that “[s]chools are cautioned to avoid conflicts of interest and biases” in order to “prevent institutional interests from interfering with the impartiality of the adjudication.”

While reviewing the changes initiated by the 2017 Q&A, colleges and universities would be well-served to examine their investigation process as a whole. Schools must take a hard look at whether its investigators are well-trained in investigating complex, sex-based crimes, and whether there is implicit or apparent bias if the investigators are either employed by or legal counsel for the school. An uptick in lawsuits alleging ineffective or improper investigations in dereliction of Title IX[8] illustrate the need for an independent, third-party investigation team. Third-party investigators, with specialized skills in complex investigations and the knowledge to effectively and appropriately investigate claims under the law and the new interim guidelines, could assist schools with avoiding high-stakes litigation and government investigation, or both.

For further information regarding the Kurowski Shultz Investigations and Compliance Practice Group please contact Jon Allard, Practice Head at jallard@kurowskishultz.com

 

[1] https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

[2] https://www.ed.gov/news/press-releases/department-education-issues-new-interim-guidance-campus-sexual-misconduct

[3] https://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201104.pdf

[4] https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf

[5] http://www.thecrimson.com/article/2017/9/25/harvard-responds-to-devos-guidelines/

[6] http://www.coloradoan.com/story/news/2017/09/23/university-colorado-boulder-wont-use-new-evidence-standard-sex-assaults/696740001/

[7] http://www.dailyprogress.com/news/national/uva-to-maintain-sexual-assault-policy-while-reviewing-interim-title/article_050f12fa-9fab-11e7-97af-1395b0824755.html

[8] http://www.kslfllc.com/blog/student-sues-columbia-university-failure-promptly-thoroughly-investigate-reports-campus-rape/; http://www.kslfllc.com/blog/university-settles-title-ix-suit-1-15-million-amid-allegations-failed-investigation/