On September 22, 2017, the Office of Civil Rights (“OCR”) announced guidance describing how OCR will assess Title IX compliance while formal regulations are developed. This interim guidance, plus guidance issued by OCR in 2001 and 2006, now largely explains how OCR will evaluate compliance with Title IX. The following five points are notable.
(1) The September 2017 guidance is temporary. While no timeframe has been announced, OCR expects that rulemaking will occur. The interim guidance will be in place until that rulemaking process is completed. In other words, OCR’s temporary guidance will be effective only until more formal regulations are issued in the future.
(2) There is flexibility in the standard of proof. Under the interim guidance, institutions can use either the “preponderance of the evidence” standard or a “clear and convincing evidence” standard in sexual misconduct proceedings. OCR has warned that institutions should use the same standard for sexual misconduct cases that they use for other misconduct cases, but OCR has not mandated the use of a uniform standard. Institutions that use different standards of proof may want to evaluate the reasons for doing so. They should also monitor how OCR addresses the standard of proof in its Title IX investigations.
(3) The requirements of the Violence Against Women Act (VAWA) still apply. OCR’s interim guidance does not change the regulatory requirements that apply to situations involving allegations of dating violence, domestic violence, sexual assault, and stalking. In those situations, the VAWA regulations still require (among other things) that the accuser and the accused be allowed to have an advisor of their choice, including an attorney, accompany them during the disciplinary process; that the policy describing disciplinary proceedings include anticipated timelines for each step in the process; and, that any right to appeal apply equally to the accuser and the accused.
(4) Interim measures must be individualized and fluid. While a Title IX investigation is ongoing, institutions must institute interim measures to provide support and to protect against harassment, violence, and retaliation. Institutions must provide interim measures, as appropriate, to both the complainant and the respondent. The measures must be based upon information gathered by the Title IX Coordinator and should be individualized for each situation. The Title IX Coordinator should communicate with the parties involved as the investigation proceeds to determine if the interim measures should be modified to address evolving needs or circumstances. The Title IX Coordinator should make every effort to avoid interim measures that deprive a student of his or her education.
(5) Informal resolution processes must be used prudently. The September 2017 guidance confirms that informal process can be used to resolve complaints where the institution determines that it is appropriate and all parties voluntarily agree. The 2001 guidance indicates that informal resolution is appropriate for harassment complaints, but not for complaints of sexual violence. Also, any informal resolution must be facilitated by an appropriately trained mediator, administrator, or counselor. The parties cannot be required to “work it out” between themselves.
