Obama Administration Announces Voluminous Guidance Regarding Sexual Violence

by Franczek Radelet P.C.
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Schools now have a substantial amount of additional guidance to review, process, and implement in their ongoing efforts to address sexual violence and achieve and maintain compliance with Title IX of the Education Amendments of 1972 (Title IX). Yesterday, the U.S. Department of Education’s Office for Civil Rights (OCR) issued new guidance for all schools (both higher education institutions and K-12 schools) regarding Title IX as applied to sexual violence. Also issued yesterday was a report of the White House Task Force to Protect Students From Sexual Assault (White House Task Force). The White House Task Force Report focuses on sexual assault in the college and university setting. Although much of the information set forth in this guidance is consistent with the information contained in the OCR’s April 2011 Dear Colleague Letter (DCL), the guidance released yesterday also includes a significant amount of new information and recommendations for schools to consider.

OCR Guidance

The 46-page guidance issued by the OCR provides extensive guidance in a question-and-answer format that covers a range of topics, including:

  • When the OCR considers a school to have notice of student-on-student sexual violence;
  • How the DCL applies to employee-on-student sexual violence;
  • Issues that arise with respect to students with disabilities, LGBT students, and international students who experience sexual violence;
  • The nature and extent of the responsibilities of a school’s Title IX coordinator;
  • The elements that should be included in a school’s procedures for responding to complaints of sexual violence;
  • Who qualifies as a “responsible employee” having an obligation to report incidents of possible sexual violence to a school’s Title IX coordinator and what information must be reported;
  • How a school should respond to a student’s request for confidentiality, including any request that a student’s name not be disclosed to the alleged perpetrator or that no investigation or disciplinary action be taken;
  • What elements a school’s Title IX investigation and grievance process should include and how that intersects with any criminal investigation;
  • What remedies a school should consider in cases of student-on-student sexual violence, and how schools should provide notice of the outcome and any appeals;
  • What type of training schools should provide to its employees, students, and those involved in investigating and resolving complaints of sexual violence; and
  • How Title IX intersects with the First Amendment, the Clery Act, and the Violence Against Women Reauthorization Act of 2013.

White House Task Force Report

The 20-page White House Task Force Report, “Not Alone: The First Report of the White House Task Force to Protect Students From Sexual Assault,” urges colleges and universities to take a number of steps, including use of campus climate surveys (which the Report notes could be required beginning in 2016); implementation of bystander intervention programs to help prevent sexual violence; and revision of policies to clarify options available to complainants, including how to keep reports confidential. The Report also calls for greater transparency with regard to OCR investigations and enforcement efforts and announces the launch of a web site that will make information about those efforts public (NotAlone.gov). Along with its Report, the White House Task Force issued several additional guidance documents, including the following:

The Report makes clear that further recommendations from the White House Task Force will be forthcoming and that additional federal legislation is also a possibility.

The guidance released yesterday is yet another reminder that issues of sexual violence are a top priority for the federal government. Indeed, we understand that the government intends to identify numerous colleges and universities that are currently under investigation by the OCR. The guidance also serves as a reminder that compliance is an ongoing effort that requires schools to continue to monitor new developments. We strongly encourage Title IX coordinators and others responsible for Title IX compliance to review this latest guidance and consider how best to implement that guidance, taking into account each institution’s unique culture and circumstances.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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