Friday, September 22, 2017

Department of Education Withdraws 2011 Dear Colleague Letter

Today the Department of Education announced its withdrawal of the 2011 Dear Colleague Letter and related 2014 "Q&A" guidance. This decision was not a surprise as it was foreshadowed by Secretary DeVos's speech at George Mason University earlier this month. The letter announcing the withdrawal reiterates DeVos's earlier-stated intentions to conduct a notice and comment rulemaking process (though it does not specify a timeframe for this).

The letter also seeks to clarify what kind of sexual misconduct response it expects education institutions to engage in in the meantime. First, the 2011 Dear Colleague Letter's policy antecedents remain in effect; these are the 2001 Revised Sexual Harassment Guidance and the 2006 Dear Colleague Letter endorsing the 2001 Guidance.  Secondly, the regulations that the prior administration promulgated in 2014 to enforce the Clery Act are unaffected by the Dear Colleague Letter's withdrawal. Finally, the Department issued a new Q&A that will supplement the earlier guidance as a source of answers to questions about schools' obligations under Title IX to address sexual misconduct. This reiterates some of the key points under the antecedent guidance, as well as the Clery regs. Interestingly, it also adds some new requirements and retains some aspects of the withdrawn 2011 Dear Colleague Letter.  Here is my impression of the key features of today's change:

  • The Q&A continues to endorse the school's obligation to respond whenever it "knows or reasonably should have known" that an incident of sexual misconduct occurred, regardless of whether someone is filing a complaint.  To be actionable, the incident(s) must constitute "severe, persistent or pervasive" and operate to deny or limit a student's ability to participate in school programs. This is consistent with the 2001 Guidance. 
  • Like the 2001 Guidance, the new Q&A says that "it may be appropriate" for schools to take interim measures -- services and accommodations like counseling, schedule or housing modifications, extensions, etc. that institutions make to students while an investigation and grievance proceeding. The new Q&A adds, however, that interim measures may be appropriate for the responding party as well as the reporting party.
  • The requirement that schools adopt and publish a grievance procedures stems from the 2001 Guidance and is codified by the Clery regs. This requirement, as well as various characteristics that are also codified, is retained in the Q&A.  
  • That said, the new Q&A abandons the specific 60 day time frame that the 2011 Dear Colleague Letter offered as an interpretation of the existing requirement that the procedures ensure "prompt" investigation.
  • The new Q&A also abandons the 2011 Dear Colleague Letter's requirement that institutions use the preponderance standard of evidence as part of the existing requirement that procedures be "equitable." The Q&A says that institutions may use either the preponderance standard OR the clear and convincing standard. It's arguable that this is a new approach for the Department, since even prior to the 2011 Dear Colleague Letter, the agency required institutions to use the preponderance on a case-by-case basis in enforcement actions. 
  • On the other hand, the new Q&A retains the requirement that institutions provide symmetrical procedural rights to complainants and respondents (with one exception noted in the next bullet point). This was a major aspect of the 2011 Dear Colleague Letter and it put an end to the practice of holding one-sided hearings where the complainant had no role or even right to be there. Some of the symmetry principal that originated in the 2011 Dear Colleague Letter was codified in the Clery regs, including the right to receive notice of the outcome and the right to have present at the hearing an advisor of the party's choice. The Q&A does not repeal the aspects of the symmetry principle that are not so codified. 
  • The exception to the point above is the right to appeal. Whereas the 2011 Dear Colleague Letter extended the "symmetry" requirement to the right to appeal, the new Q&A permits institutions who offer a right to appeal to either offer it to both parties OR to restrict it only to the respondent.  The Q&A attributes this (vaguely) to notions of due process.  
So this is the state of things until the Department promulgates new regulations. My guess is that if we had to guess about the content of the new regulations the agency will propose, the Q&A is a good indication.