Department of Education Revokes Dear Colleague Letter Department of Education Revokes Dear Colleague Letter

Department of Education Revokes Dear Colleague Letter

On Sept. 22, 2017, the Department of Education (“DOE”) officially withdrew the Dear Colleague letter issued on April 4, 2011, which included the controversial guidance regarding how colleges and universities should handle sexual misconduct investigations under Title IX. Among other things, the Dear Colleague letter mandated that a “preponderance of the evidence” standard be utilized when reaching decisions. The DOE also withdrew the “Questions and Answers on Title IX Sexual Violence” issued on April 29, 2014, which provided further guidance on this subject. The DOE issued a new document entitled “Q&A on Campus Sexual Misconduct” to serve as an interim guide until formal rules are adopted.
 
While the withdrawal of these documents certainly changes the landscape, much of the legal framework surrounding sexual misconduct investigations remains the same. For instance, the regulations adopted in 2014 pursuant to the Violence Against Women Act have not been withdrawn, and the DOE has not indicated it plans to change them in the near future. This means current rules such as the one requiring schools to provide programs designed to prevent sexual misconduct remain in full force and effect even though preventative programs are not addressed in the new Q&A. 
 
Below are highlights of what’s changed following the revocation of the OCR’s prior guidance:
 
  • The Dear Colleague letter rejected mediation, even on a voluntary basis, in cases involving allegations of sexual assault. The new Q&A provides mediation may be used in sexual assault cases if both parties consent to the procedure and the school believes the particular complaint is appropriate for an informal dispute resolution process.
  • Schools had to take interim steps to protect complainants during the investigation of the complaint under the Dear Colleague letter. The new Q&A provides that the interim steps must protect both the complainant and responding party. It specifically states such steps cannot be made available only to the complainant. 
  • The “preponderance of evidence” standard was the most talked about aspect of the Dear Colleague letter. It is still alive in certain circumstances. The new Q&A states, “the findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.” It goes on to state that, “the standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases.” So if a school applies a preponderance of evidence standard in cases involving academic misconduct like plagiarism, then it can apply a preponderance of evidence standard in a sexual misconduct hearing. 
“Preponderance of evidence” and “clear and convincing” are not the only two standards schools utilize when addressing student misconduct. It is not clear how the DOE would view the use of a standard the same as that applied in other matters but that is not “preponderance of the evidence” or “clear and convincing.”
 
Some state laws, including laws in Illinois and Connecticut, require schools to apply a “preponderance of the evidence” standard in sexual misconduct proceedings. If a college subject to such state laws applies a “clear and convincing” standard in other misconduct proceedings, there is a conflict between the federal guidance in the new Q&A and state law regarding the standard that must be applied in sexual misconduct proceedings.
 
  • The new Q&A strongly suggests schools should not issue orders preventing parties from discussing the case. It states, “[r]estricting the ability of either party to discuss the investigation (e.g. through ‘gag orders’) is likely to deprive the parties of the ability to obtain and present evidence or otherwise to defend their interests and therefore is likely inequitable."
  • The OCR’s prior guidance provided that most investigations should be completed within 60 days of the receipt of the complaint, but recognized some may take longer due to the complexity of the allegations and the unavailability of parties and witnesses during breaks. The new Q&A removes the 60 day rule-of-thumb, stating, “There is no fixed time frame under which a school must complete a Title IX investigation. OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.”
  • Prior guidance stated if the school permits appeals, then both parties must have the ability to do so. The new Q&A permits schools to restrict the ability of the complainant to appeal, stating, “If a school chooses to allow appeals from its decisions regarding responsibility and/or disciplinary sanctions, the school may choose to allow appeal (i) solely by the responding party; or (ii) by both parties, in which case any appeal procedures must be equally available to both parties.”
The DOE’s changes are being implemented pursuant to a three-step process. The withdrawal of these documents is just the first step. Step two will require the DOE to submit specific proposed rules through the formal rule-making process, so eventually they will become official regulations published in the Federal Register. Interested parties, including colleges and universities, will have the opportunity to submit comments during the process. It is expected the draft rules will be issued before the end of the year. The third, and final, step will be the issuance of the formal rules, which colleges and universities will need to incorporate into their policies. This will likely not occur until the second half of 2018, at the earliest.
 
In light of these changes, colleges and universities need to review their sexual misconduct policies and make adjustments if any policy is not in line with the DOE’s new guidance. The new rules issued by the DOE will likely provide more rights to those responding to sexual misconduct complaints. Revisions to existing policies should keep this in mind. Policies will need to be adjusted again after the final rules are published.
 
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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