U.S. Department of Education Withdraws Prior OCR Guidance on Campus Sexual Misconduct Under Title IX

09.22.2017

On September 22, 2017, under the leadership of Secretary of Education Betsy DeVos, the federal Department of Education (Department) withdrew two Office for Civil Rights (OCR) guidance documents and replaced them with new, interim guidance.

The following federal OCR documents have been withdrawn:

• Dear Colleague Letter on Sexual Violence, dated April 4, 2011
• Questions and Answers on Title IX and Sexual Violence, dated April 29, 2014

These two documents appear to be under scrutiny by the Department for interpreting Title IX to impose new legal mandates on how schools and colleges investigate, adjudicate and resolve allegations of student-on-student sexual misconduct, without following proper rulemaking procedures. This action is not a surprise after Secretary DeVos’s statement from September 7, 2017, indicating that the Department intended to engage in the rulemaking process surrounding Title IX responsibilities to address sexual misconduct. [September 22, 2017 DCL]

In the meantime, the Department issued new interim guidance in the form of a seven-page Q&A on Campus Sexual Misconduct. [September 22, 2017 Q&A on Campus Sexual Misconduct] The new Q&A document confirms that an educational institution that receives federal funds must "ensure that no student suffers a deprivation of her or his access to educational opportunities on the basis of sex." Accordingly, the interim 2017 Q&A reiterates the duty of a school to take steps to understand what occurred and to respond appropriately when it knew or reasonably should have known of an incident of sexual misconduct.

The interim Q&A also discusses, among other things, interim measures, investigations, grievance procedures, informal resolution of complaints, decision making related to finding responsibility for misconduct and determining sanctions, if any. Finally, the Q&A emphasizes that it is a "significant" guidance document, but that it does not add requirements to existing law.

Because the California Education Code has already codified several concepts contained in the former OCR guidance on sexual misconduct, many of the issues discussed in the new guidance may not significantly affect public educational institutions in California. However, the new Q&A guidance does include several new aspects of Title IX compliance that could impact how educational institutions should respond to sexual misconduct complaints in the future. Please stay tuned for further analysis and guidance comparing California and federal law prohibiting sex discrimination so that current practices and policies can be updated as needed.