Rescission of Previous Administration’s Guidance Relating to Transgender Students

On February 22, 2017, the U.S. Department of Justice and U.S. Department of Education released a Dear Colleague Letter rescinding the previous administration’s guidance documents addressing treatment of transgender students, including the provision of access to bathroom and locker room facilities for transgender students based on the student’s gender identity. The Supreme Court was scheduled to hear this month, Gloucester County School Board v. G.G., the case of a transgender student at a Virginia high school seeking access to use the boy’s bathroom at the school. However, on March, 6, 2017, the Court remanded the case to the U.S. Court of Appeals for the Fourth Circuit for further consideration in light of the February 22, 2017 Dear Colleague Letter.

Click here to view the February 22, 2017 Dear Colleague Letter.

Doe vs. Rivera, Case No. 37-2015-00029558-CU-WM-CTL (Cal. Super. Feb. 1, 2017)

The Superior Court of California recently issued an Order directing San Diego State University to set aside specified findings of a disciplinary hearing related to a sexual assault claim.  The Court found that the accused student was fundamentally deprived of a fair hearing, on the basis that while the complainant was, in effect, provided an advocate and advisor allowed to speak on her behalf at the hearing, the University did not provide a similar advocate and advisor to the accused student, who was required to advocate his own defense. Specifically, the Court highlighted the “multiple hats” worn by the investigator that the University assigned to the sexual assault investigation.  The Court noted that the University’s investigator became an advocate and advisor for the complainant, both counseling the complainant and speaking on her behalf throughout the process, including during the hearing.  In contrast, while the accused student was permitted to consult with his attorney, he was required to speak on his own behalf.  The Court expressed that the failure to provide the accused with “an adult advisor with the same or substantially similar skills, training and experience” as the assigned investigator entitled to speak on the complainant’s behalf resulted in a fundamental deprivation of a fair hearing.  The Court’s ruling serves as a reminder that being vigilant of conflicts of interest that may arise during the investigation and adjudication of Title IX complaints may help institutions avoid unintended due process violations.   

Written Investigation Reports

Nexsen Pruet’s Title IX team is frequently called upon to assist with Title IX investigations and review investigation reports for legal sufficiency. We often direct our clients to the Office for Civil Rights (“OCR”) July 2011 Resolution Agreement with the University of Notre Dame.

The July 2011 Resolution Agreement with Notre Dame, sets out OCR's standard for what, at a minimum, should be included in a written investigation report.

• The name and sex of the alleged victim and, if different, the name and sex of the person reporting the allegation
• A statement of the allegation, a description of the incident(s), and the date(s) and time(s) (if known) of the alleged incident(s)
• The date that the complaint or other report was made
• The date the accused was interviewed
• The names and sex of all persons alleged to have committed the alleged harassment
• The names and sex of all known witnesses to the alleged incident(s)
• The dates that any relevant documentary evidence (including cell phone and other records as appropriate) was obtained
• Any written statements of the complainant (or victim, if different from the complainant)
• The date on which the university deferred its investigation and disciplinary process because the complainant filed a law enforcement complaint and, as applicable, the date on which the university resumed its investigation and disciplinary process
• The outcome of the investigation and, if any, disciplinary process
• The response of university personnel and, if applicable, university-level officials, including any interim and permanent steps taken with respect to the complainant and the accused
• A narrative of all action taken to prevent recurrence of any harassing incident(s), including any written documentation

Read the full July 2011 Resolution Agreement detailing OCR’s complete findings.