The U.S. Department of Education recently rescinded its 2011 Dear Colleague Letter and its companion 2014 Sexual Violence Questions and Answers document, both of which provided guidance to school districts regarding their obligations under Title IX for processing complaints of sexual misconduct/violence. The Department intends to issue new rules after engaging in a formal rulemaking process, which includes opportunity for public comment. Until then, the Department has issued interim guidelines that illustrate how the Office for Civil Rights will assess a school’s compliance with Title IX.
Under the interim guidelines, school districts remain obligated to address allegations of sexual misconduct where the school knows or reasonably should know of an incident of sexual misconduct. This includes ensuring that grievance procedures are in place to provide prompt and equitable resolution of complaints. The interim guidelines do not provide a specific timeline for resolution of the complaint, other than indicating the investigation must be prompt and OCR will consider whether the school district made a good faith effort to provide the parties with resolution in a timely manner. In addition, school districts may facilitate an informal resolution that does not involve a full investigation if all parties voluntarily agree to participate.
When a formal investigation is conducted, the burden is on the school district to gather the necessary information to ensure a fair and impartial determination as to the existence of sexual misconduct. While the 2011 Dear Colleague Letter required the grievance procedures to apply the preponderance of evidence standard (more likely than not that the sexual misconduct/violence occurred), the interim guidelines allow the school district discretion in determining whether to apply the preponderance of evidence standard or a higher standard of clear and convincing evidence (reasonably certain that the sexual misconduct/violence occurred).
For more information regarding your district’s obligation to ensure compliance with Title IX, please contact a DWK attorney.