Campus Sexual Misconduct Investigations: What’s Changed Six Months Into the New Administration? Campus Sexual Misconduct Investigations: What’s Changed Six Months Into the New Administration?

Campus Sexual Misconduct Investigations: What’s Changed Six Months Into the New Administration?

It’s now been six months since the Trump administration took over the Department of Education (DOE). Many are expecting the new administration to change the guidance put forward by the DOE’s Office of Civil Rights (OCR) regarding how colleges and universities should handle sexual misconduct investigations. In particular, changes are anticipated in the guidance set forth in the Dear Colleague letter published in 2011 that, among other things, informed colleges they should apply a “preponderance of the evidence” standard during sexual misconduct hearings. While there have not been changes to the guidance to date, significant personnel changes and modifications to the OCR’s operating procedures forecast that major changes should be expected.

New Secretary of the DOE and Leader of the OCR
 
On February 7, 2017, the Senate confirmed Betsy DeVos as Secretary of Education by a 51-50 vote, with Vice President Mike Pence breaking the tie. Prior to leading DOE, Secretary DeVos was known for advocating for school choice.
 
The position of OCR director requires a Presidential nomination and Senate confirmation. To date, no permanent head of OCR has been nominated. However, Secretary DeVos named Candice Jackson as acting director of OCR. Under the Federal Vacancies Reform Act, Ms. Jackson can serve in this capacity for 210 days, provided the President nominates a permanent director prior to the end of the 210 days. If the President timely submits a nomination, Ms. Jackson may then serve while the nominee is pending Senate confirmation.
 
Ms. Jackson is a former sexual assault victim. Recently she made a controversial comment claiming, with respect to sexual misconduct complaints, “the accusations—90 percent of them—fall into the category of we were both drunk, we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.” As many Title IX coordinators can attest, this describes some cases, but in many cases, the alleged victim and perpetrator either did not know each other prior to the alleged sexual misconduct or were merely casual acquaintances, and most incidents are reported soon after they occur. Ms. Jackson later apologized for her comment.
 
Potential Cuts in Staffing at OCR
 
Steep budget cuts have been proposed for many federal agencies. OCR fared better than most agencies by maintaining level funding. The budget, however, calls for reducing full-time employees by seven percent. If this budget passes, the case load of OCR’s case officers will increase. While OCR’s goal is to resolve investigations within 180 days, most resolutions take much longer, and commentators are concerned the reduction in personnel will further extend the time to complete investigations. 
 
Change in Scope of Investigations
 
The OCR made its first substantive policy change in June when Ms. Jackson issued an internal memorandum to OCR’s investigators discussing the scope of investigations conducted by OCR. Investigations are generally commenced when a complaint is filed regarding an individual case. OCR investigators, however, generally review numerous cases during the course of the investigation to determine whether there are systemic issues constituting violations of Title IX. Ms. Jackson stated going forward “OCR will only apply a ‘systemic’ or ‘class-action’ approach where the individual complaint allegations themselves raise systemic or class-wide issues or the investigative team determines a systemic approach is warranted through conversations with the complainant.”
 
Ms. Jackson’s changes will make investigations less burdensome. One of the most difficult aspects of investigations is pulling together all of the information regarding the sexual misconduct investigations an institution has handled in the past few years. In addition, persons interviewed by OCR have to prepare to discuss all investigations of which they’ve been a part, some occurring years prior. Now the institution can, in most cases, focus on the individual complaint. While OCR retains the right to investigate systemic issues if the complaint alleges such issues or they come to its attention during an investigation, wide-ranging investigations should occur significantly less frequently than before.
 
End of “The List”
 
In 2014, OCR commenced the publication of a list of colleges and universities under investigation for possible violations of Title IX related to their handling of sexual misconduct complaints. Unfortunately, this list lacks important context. While newspapers run dramatic headlines like “College X Under Investigation by Department of Education for Handling of Sexual Assault Reports,” these articles generally omit the key fact that, under the OCR’s case handling guidelines, nearly all complaints are investigated as long as they are filed within 180 days of the alleged act. As a result, a large percentage of persons who are disappointed with the outcome reached by a sexual misconduct board—whether it is the accused who feels he or she was wrongly found responsible or an alleged victim unhappy that the alleged perpetrator was found not responsible or not given a harsh enough penalty—file complaints with the OCR, using it as a de facto appellate court. And while the list generates much publicity, the results of the OCR’s investigation do not. Critically, many investigations conclude that the college or university did nothing wrong or recommend minor changes to sexual misconduct procedures. In addition, FERPA rules severely restrict what information colleges and universities can disseminate to provide context for the investigation.
 
While no final decision has been made by OCR regarding the list, at a presentation in June 2017, Ms. Jackson indicated eliminating the list was “high up” on the items that will be addressed by OCR in the near future. For colleges and universities, this would be a welcome change. Considering the length of investigatory time, colleges and universities can unfairly remain on the list for extended periods. Adverse findings against a college or university are already publicly available and will likely continue to be published, giving the public comfort that OCR is indeed doing its job and addressing issues when appropriate.
 
What’s Ahead
 
Six months into the new administration, the Dear Colleague letter is still in effect, including the “preponderance of the evidence” standard. That could change soon. On July 13, 2017, Secretary DeVos met with a variety of groups, including groups advocating victim rights and organizations, like the National Coalition for Men, that advocate for greater rights for the accused. This meeting was seen as a precursor for changes to the existing guidance. While OCR has signaled changes are coming, it is not clear what those changes will be. OCR could withdraw the letter in its entirety, taking colleges and universities back to the scheme in force prior to when the letter was issued in 2011. Or they could leave all or at least parts of it in place while they submit it to the formal rule-making process, which will allow colleges and universities and various advocacy groups to weigh in on the procedures. Rule-making is not a speedy process; usually, there is at least a year between when a proposed regulation is first published and its effective date.
 
Colleges and universities will need to promptly update their Title IX policies and procedures to address any changes made to OCR’s regulations or guidance. Changes will likely focus on providing more protections to the accused, going beyond the protections issued in OCR’s regulations effective July 1, 2015, which, for instance, provide the accused should have the ability to have an attorney present during the sexual misconduct hearing. Regardless of whatever changes are made at the federal level, the spotlight on sexual misconduct proceedings at colleges and universities is likely to continue.

Nate Uhl and Catherine Strauss are attorneys with Ice Miller LLP. Ice Miller has a robust Title IX practice, assisting clients with the development of policies and procedures, counseling clients during sexual misconduct investigations and hearings, and representing clients during reviews undertaken by the Department of Education’s Office of Civil Rights. Uhl works in Ice Miller’s Indianapolis, Indiana office and can be reached at nate.uhl@icemiller.com or (317) 236-2383. Strauss works in Ice Miller’s Columbus, Ohio office and can be reached at catherine.strauss@icemiller.com or (614) 462-1069.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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