The Department of Education's Office for Civil Rights today released a new guidance document geared to help schools, colleges, and universities understand and implement their responsibilities under Title IX to prevent and correct sexual harassment. The "Dear Colleague" Letter put particular focus to sexual violence like rape and sexual assault, which are forms of sexual harassment and thus actionable under Title IX. With regards to all manners of sexual harassment, an institution's responsibility under Title IX is to take immediate action to address harassment that it knows or should know about. It should have a policy that defines sexual harassment and outlines the grievance procedure that a student can use to file a complaint. It must ensure that the policy is widely disseminated and understood, and that appropriate staff are trained in recognizing and addressing sexual harassment.
It is evident from the guidance that OCR is trying to keep other schools from making mistakes that others have made in recent years. For example, the guidance clarifies that when sexual violence is first reported to the athletic department, such as in cases involving student-athletes, the athletic department must make sure that the student has access to the same grievance procedure that is available to all students. It cannot seek to handle the matter within the athletic department in an attempt to limit the athlete's or the athletic department's exposure to sanctions or negative publicity. In recent years, we've written about several universities that have done exactly that, including the University of Washington and the University of Iowa.
The guidance also makes clear that a school's response to charges of sexual violence cannot be conditioned on the results of the results of a criminal investigation. Schools cannot delay their own investigations pending findings by police, or condition university sanctions or other responses on a prosecutor's decision to criminally convict. We've posted about this problem as well, such as in a recent case against Dominican College. Relatedly, schools should not confuse their own response with a criminal response. They must employ the civil "preponderance of evidence" standard when making findings about whether sexual harassment did or did not occur. The stricter "clear and convincing" standard, while appropriate for law enforcement and the imposition of criminal sanctions, should not apply in university judicial proceedings where criminal sanctions are not at stake.
The guidance reminds schools that pending outcome of criminal or university investigation, they should take immediate steps to protect the complaining student, such as changing students' living arrangements and schedules, while minimize the burden on the complaining student, and providing the complaining student with access to counseling and support. For examples of a university's inappropriate response to charges of sexual violence, see recent posts about Arizona State (here and here).
The guidance also addresses what OCR recognizes as "confusion" that my derive from seemingly conflicting mandates of Title IX and the Federal Educational Records Privacy Act, or FERPA, which prohibits unauthorized disclosures of student's records. OCR clarifies that universities may disclose to the campus community a finding that a student has perpetrated an act of sexual violence in violation of university policy, which is necessary to protect students from further harm. In other matters involving sexual harassment, the victim has the right to know the final results of the university's investigation and sanction, including a determination no violation has not been committed. Moreover, federal law known as the Clery Act requires institutions to report campus crimes, including sexual assault, an obligation that does not yield to the privacy rights of a perpetrator found guilty. A university's failure to report criminal sexual violence was at issue in OCR's recent investigation and settlement with Eastern Michigan University.
Overall, OCR's guidance letter does not create new rights and duties under Title IX, but rather, seeks to clarify existing rights and responsibilities in order to ensure that help universities protect students and avoid liability. This surely is much-needed reminder, as demonstrated by the recent and prevalent examples mentioned here of universities' botched responses to sexual harassment and sexual violence. Responsible schools and universities will use the guidance letter as an opportunity to self-inventory their policies and practices related to sexual harassment and strengthen or revise them as needed.