Change to Federal Guidance on Campus Sexual Assault

On Friday, September 22, 2017, the federal Department of Education (“DOE”) withdrew the Obama-era Title IX guidance on campus sexual assault.  At the same time, the DOE issued interim guidance (“Q&A on Campus Sexual Misconduct”) regarding schools’ responsibility to address sexual misconduct. This interim guidance is intended to assist schools while the DOE engages in formal rulemaking on this topic.  Although substantive changes will undoubtedly occur when the DOE issues the new federal rules on Title IX (likely sometime next year), independent schools should take note of the following key points from interim guidance:

(1) Schools Still Have an Obligation to Address Sexual Misconduct:
The DOE made clear that when school officials know or reasonably should know of an incident of sexual misconduct, the school must take steps to understand what occurred and to respond appropriately.  That means that schools continue to have a legal obligation to investigate and respond to known sexual misconduct between students.

(2) More Flexibility for Schools in Investigating and Adjudicating Sexual Misconduct: 
In general, the interim guidance affords schools more flexibility in investigating and adjudicating sexual misconduct than the Obama-era guidance.  For example, the DOE has opened up the possibility of using mediation and restorative justice in sexual misconduct cases if all parties agree and the schools determines that it is appropriate in a given case.  The interim guidance also permits schools to use either a preponderance of the evidence standard or a (higher) clear and convincing standard in adjudicating sexual misconduct cases.  Schools are also no longer obligated to complete sexual misconduct investigations within a 60-day time frame.

(3) Emphasis on Fair Process: 
As expected, fairness to students accused of sexual misconduct was a central focus of the new interim guidance.  The interim guidance emphasizes the importance of providing accused students with written notice of the specific allegations prior to an initial investigation interview.  Further, the interim guidance provides that broad confidentiality instructions to the parties in an investigation restricts their ability to obtain and present evidence and are therefore “likely inequitable.”  The interim guidance also makes clear that “interim measures” designed to protect or assist a student during the pendency of an investigation (counseling, changes to class schedules, changes in living arrangements, no-contact orders) should be made available to both parties and every effort should be made not to deprive either party of his or her education.  In the only reference to K-12 schools, the interim guidance notes that schools must provide written notice of the disciplinary outcome to parents of students under the age 18 (or directly to students if 18 or older), including the rationale for decision.

What Changes Should Be Made at Your Independent School?

While this new guidance is temporary, it certainly foreshadows what to expect from the Department of Education’s final rules on campus sexual assault.  Even for schools that are not subject to Title IX, many of the “fairness” concepts emphasized in the interim guidance have also been endorsed in court rulings.  As such, independent schools would be well advised to examine their sexual misconduct policies and disciplinary processes to ensure that they afford fundamental fairness to both parties.  That said, independent schools should continue to follow their policies as written and not make any changes without carefully considering their impact and consulting with legal counsel.

We will continue to update independent schools on Title IX developments from the Department of Education.