U.S. Department of Education Secretary Betsy DeVos announced today that the April 4, 2011 Dear Colleague Letter and the April 29, 2014 Questions and Answers on Title IX Sexual Violence have been withdrawn and replaced with a new interim “Q&A on Campus Sexual Misconduct.” The new interim Q&A is deemed a significant guidance document that establishes the current administration’s expectations for schools to follow when investigating and adjudicating allegations of sexual misconduct. The new Q&A does not, however, replace the 2001 Revised Sexual Harassment Guidance and the January 25, 2006 Dear Colleague Letter, which will continue to provide effective Title IX guidance for schools.

First, what did not change under the new Q&A. Title IX requires schools to investigate and respond appropriately to incidents involving allegations of sexual and interpersonal misconduct. In addition, as we’ve noted in previous blogs, colleges and universities are still subject to the Clery Act regulations requiring policies, procedures, and programs that address dating violence, domestic violence, sexual assault, and stalking.

These requirements for prompt and equitable grievance procedures and investigations remain essentially the same under the new Q&A:

  • Provide notice of the school’s grievance procedures to students and employees that apply whether the alleged perpetrator is an employee, a student, or a third party
  • Designate reasonably prompt time frames for phases of the grievance process (schools must use a “good faith effort” to complete the process in a timely manner without an expectation of completing the process in 60 days)
  • Notify both parties of the outcome
  • Take steps to prevent the recurrence and remedy the effects of the misconduct
  • Provide the same opportunities to both the complainant and respondent during the grievance proceedings to have an advisor of their choice present (but the school may limit the extent to which advisors may participate in the proceedings)

New and additional requirements for grievance procedures in the new Q&A require that schools:

  • Ensure that an adequate, reliable, and impartial investigation is conducted by a trained and unbiased investigator who is “free of actual or reasonably perceived conflicts of interest and biases for or against any party,” and free of any institutional bias
  • Provide the respondent with written notice of the allegations, giving sufficient detail and time for the respondent to prepare a response before an initial interview
  • Provide written notice to both complainant and respondent of any interview or hearing, with access to any information that will be used and “with sufficient time to prepare for meaningful participation”

The most significant guidance in the new Q&A for resolving complaints allow schools to:

  • Apply either a preponderance of evidence or a clear and convincing standard of evidence to make findings of fact and conclusions regarding responsibility for violating the school’s sexual misconduct policy, and the standard applied should be the same as that used in other student misconduct cases
  • Provide interim measures that are individualized to each student, that strive to not deprive either student of educational opportunity, and that do not “rely on fixed rules or operating assumptions that favor one party over another.”
  • Facilitate informal resolutions — including mediation — of complaints if both parties agree to participate
  • Provide both parties with access to information used during disciplinary meetings and hearings, including the investigation report
  • Provide both parties with equal opportunities to respond in writing prior to the hearing or rendering a decision
  • Impose disciplinary sanctions that are a proportionate response to the student code of conduct violation, “while considering the impact of separating a student from her or his education”

Finally, if a school allows appeals from decisions of responsibility and/or disciplinary sanctions, the right to appeal may be exercised either (1) solely by the respondent, or (2) by both parties.

With regard to resolution agreements reached while the 2011 DCL and 2014 Q&A were in effect, the individual school remains bound by those voluntary agreements.

Until the adoption of Title IX regulations after the rulemaking process is concluded, this new interim Q&A guidance and the 2001 Revised Sexual Harassment Guidance provide an explanation of how the ED’s Office for Civil Rights under Secretary DeVos’s administration will determine a school’s Title IX compliance.

Editorial note: The 2001 Dear Colleague Letter states that “In some cases, such as alleged sexual assaults, mediation will not be appropriate even on a voluntary basis