1. Updates and Current Trends in Title IX
Rocky Mountain Campus Safety Summit
June 2018

2. Demetrius J. Peterson
Attorney
Education Group

3. Agenda New Title IX Guidance from September 2017
Old Guidance vs. New Guidance
Policy Considerations

4. September 22, 2017 Dear Colleague Letter

5. Old Guidance Rescinded
2014 Sexual Violence Q&A
2011 Dear Colleague Letter
Compliance assessed by
2001 Revised Sexual Harassment Guidance
Q&A on Campus Sexual Misconduct (2017)

6. Explanation for Rescinding
“Imposed new mandates”
“Improper pressure to adopt procedures that do not afford fundamental fairness”
“Led to deprivation of rights for many students”
“Not succeeded in providing clarity”
“Imposed these regulatory burdens without affording notice and the opportunity for public comment”

7. Rulemaking Process
ED intends to engage in rulemaking process with notice and comment
New approach will “respond to the concerns of stakeholders” and “align with the purpose of Title IX to achieve fair access to educational benefits”

8. Timing for New Regulations?
NPRM by June???
VAWA Regs Example
President Obama signed VAWA Reauthorization in March 2013
Negotiated rulemaking committee announced in September 2013
NPRM issued on June 20, 2014
Comment period closed July 21, 2014
Final Rule published October 20, 2014
Effective July 1, 2015

9. Old Guidance vs. September 22, 2017 Q&A

10. Preliminary Note: Institutions are still required to…
Provide notice of grievance procedures, including how to file a complaint
Have grievance procedures applicable to complaints alleging sexual misconduct carried out by employees, students, and third parties
Perform “adequate, reliable, and impartial investigation of complaints, including the opportunity to present witnesses and other evidence.”
Provide reasonably prompt timeframes for the major stages of the process
Notify the parties of the outcome of an investigation
Take other steps to prevent the recurrence of sexual misconduct and to remedy its discriminatory effects, as appropriate

11. Initial Written Notice (New Guidance)
Should be given once investigation is opened
Sufficient factual details
Sufficient time to prepare before “initial interview”

12. Sufficient Factual Details
Identities of parties
Specific policy provisions
Precise conduct
Date and location of alleged incident

13. Other Written Notice (New Guidance)
“Each party should receive written notice in advance of any interview or hearing with sufficient time to prepare for meaningful participation.”

14. Promptness (Old Guidance)
60 day investigation timeframe

15. Promptness (New Guidance)
60 days expectation has been removed
“No fixed time frame” to complete an investigation
OCR evaluates school’s good faith effort to conduct “fair, impartial investigation in a timely manner”

16. Standard of Proof (Old Guidance)
Preponderance of the evidence

17. Standard of Proof (New Guidance)
Option to use either preponderance or clear and convincing
But standard used for sexual misconduct cases should be consistent with that used for other forms of misconduct

18. Interim Measures (Old Guidance)
Interim measures should “minimize the burden on the complainant”
Effect: burden falls on the respondent

19. Interim Measures (New Guidance)
Prohibits schools from relying on “fixed rules or operating assumptions that favor one party over another”
School cannot make interim measures available only to one party
Institution must make “every effort to avoid depriving any student of her or his education”

20. Jurisdictional Expectations (Old Guidance)
Investigate all reports, regardless of location

21. Jurisdictional Expectations (New Guidance)
No duty to address “incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity of recipient”
Must “redress” hostile environment that occurs on campus “even if it relates to off-campus activities”

22. Scenario 1
Sadie attends a large university. One night, Sadie is sexually assaulted behind a bar located several miles from campus. Sadie immediately reports the assault and police apprehend the suspect. He is not a student. What is the school’s Title IX obligation?

23. Does the school have a Title IX obligation to investigate?
Yes No
It Depends

24. Considerations
Off campus location; third party not affiliated with school
Probably not creating hostile environment on campus
Even though investigation likely not required under new guidance, what can institution do?
Offer Sadie support and resources
Ban assailant from campus

25. Scenario 2
Sadie attends law school at a large university in Dallas. One night, Sadie is sexually assaulted behind a bar located several miles from campus. Sadie reports to the university, but not police. The respondent is a graduate student who attends the university but only comes to the dental school building.

26. What duties does the institution have?
None – Off campus conduct with a 3rd party
Must investigate under the policy if Sadie requests it
Must provide Rights & Options Document and assess whether there is any danger to Sadie while on campus

27. Considerations Off campus, but assailant is a student
Based on the situation, is there a danger to Sadie on campus?
If so, follow regular processes

28. Report Review (New Guidance)
Investigation should result in written report summarizing evidence
Parties must have “same meaningful access” to information used in report and other proceedings
Parties should have “opportunity to respond to report in writing” in advance of “decision of responsibility”
Alternative: allow parties to respond to report at a live hearing

29. Appeals (Old Guidance)
Appeal process is optional
But, if there is an appeal process it must use equally available procedures

30. Appeals (New Guidance)
Appeal process is still optional
May allow only for responding party
If allowed for both, must use equally available procedures

31. Informal Resolution (Old Guidance)
In cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis

32. Informal Resolution (New Guidance)
If parties voluntarily agree to it and the institution determines it is appropriate, “the school may facilitate an informal resolution, including mediation, to assist the parties in reaching a voluntary resolution.”

33. Some Other Notable Elements of the Rescinded Guidance
Discouragement of cross examination
Ban on the use of sexual history
No reliance on criminal investigation

34. Policy Considerations

35. Recommended Policy Changes
Provision calling for written notice with sufficient details and with sufficient time prior to initial interview
Language that ensures parties are provided written notice in advance of any meeting or hearing with sufficient time to prepare

36. Recommended Policy Changes (cont.)
Adjust language about interim measures so that it doesn’t appear to favor the complainant
Provide for pre-determination review of report and written comment

37. Discretionary Policy Changes
Remove 60 day timeframe
Standard of proof (clear and convincing instead of preponderance?)
Limit appeals to responding party only
Maximum flexibility with informal resolution (including using mediation in cases of sexual assault, if parties agree and institution deems it appropriate)

38. Discretionary Policy Changes (cont.)
Relax strict prohibition on all sexual history evidence
Allow cross-examination
Align jurisdictional language with “programs and activities” analysis

39. Issues still to be clarified…
Relationship between criminal investigations and institution
What it means to have a “hostile environment” created by off-campus conduct
Reluctant complainants
Mandatory reporting/anonymity
Protected speech vs. actionable harassment
Others?

40. Remember the Clery Act!
Clery Act obligations are independent of Title IX guidance

41. Some Key Clery Requirements Related to Sexual Misconduct
Timely warning considerations
Training & programming
Required statements in ASR
Simultaneous notice of outcome

42. Some Key Clery Requirements Related to Sexual Misconduct (cont.)
Advisor “of their choice”
Rights and options
Campus and community resources
Statistical reporting

43. What is happening at OCR?
New Guidance: existing resolution agreements still binding
OCR complaints down 23% since the beginning of the Trump Administration
FY19 Budget predicts a reduction in staff
No review of complaints on transgender bathroom/locker-room accommodations issues

44. Shift in Focus of OCR Investigations
Focus on individual complaint
Avoiding systemic review

45. Questions?

46. Questions