U.S. Department of Education Revokes Obama-era Title IX Guidance

Earlier today, September 22, 2017, the United States Department of Education's Office for Civil Rights ("OCR") issued a Dear Colleague Letter withdrawing its 2011 Dear Colleague Letter on Sexual Violence as well as its 2014 Q&A document on Title IX and Sexual Violence.

OCR's 2011 Dear Colleague Letter and its 2014 Q&A document imposed strict due process requirements on colleges and universities for handling Title IX complaints, including: requiring schools to adopt the preponderance-of-the-evidence standard in administering student discipline; limiting cross-examination by the parties; and directing schools to resolve complaints on an expedited basis, i.e., staying within a 60-day timeline.

In today's Dear Colleague Letter, OCR states that it withdrew its 2011 Dear Colleague Letter "in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits," and that the Department of Education "intends to implement such a policy through a rulemaking process that responds to public comment," as the 2011 Dear Colleague Letter was issued without affording notice or any opportunity for public comment. Until such time as the Department of Education amends Title IX's rules and regulations following the formal notice and comment period, OCR issued a new Q&A (titled "Campus Sexual Misconduct") today as well in order to provide colleges and universities with guidance in handling Title IX complaints. Upon initial review of the new Q&A, it appears that OCR has relaxed the due process requirements in Title IX cases, including allowing for informal resolution of such cases, doing away with the 60-day investigation timeline, and eliminating the requirement that schools use the preponderance-of-the-evidence standard in administering student discipline (and instead providing the option of using a "clear and convincing" standard).

Colleges and universities in New York State must be aware, however, that regardless of the OCR's withdrawal of its 2011 Dear Colleague Letter, that New York's "Enough is Enough" legislation imposes many of the same due process requirements found in the 2011 Dear Colleague Letter and OCR's 2014 Q&A guidance enforcing Title IX (e.g., requiring a school to issue written notice of the outcome of such cases to the students involved; allowing appeals by both parties). Accordingly, colleges and universities in New York must review their current policies and procedures in order to ensure that they are in compliance with both OCR's new Dear Colleague Letter and Q&A as well as New York's Enough is Enough law.