As we suggested in our February 2017 blog post, the future of Title IX application in our institutions is in flux. The Department of Education Office for Civil Rights rescinded the Obama era 2011 Dear Colleague Letter and 2014 Guidance on September 22, 2017. These guidelines placed certain procedural requirements on investigations of sexual misconduct allegations conducted by postsecondary institutions receiving federal funding. The Department of Education (“DOE”) stated that the policy requirements in these documents led to procedures that did not adequately protect the rights of the students accused of sexual misconduct. Specifically, the DOE criticized these guidelines for: requiring a preponderance of the evidence standard, requiring Universities with appeal processes to allow accusers to appeal “not guilty” outcomes, discouraging Universities from allowing cross-examinations by the parties, prohibiting the Universities from relying on law enforcement investigation reports, and requiring Universities to employ an expedited timeline for investigations. Therefore, the DOE stated it is currently in the process of developing new regulations that it will issue for public comment by all stakeholders. Until more formal regulations are adopted, schools are to follow the Q&A issued on September 22, 2017. Continue Reading DOE Announces Intention to Revise Title IX Campus Sexual Misconduct Investigation Requirements
This blog post was updated on March 17, 2017 due to the news that SCOTUS will no longer hear Gavin Grimm’s bathroom case.
The evolving field of enforcement of Title IX matters took another turn last week.
On February 22, 2017, the Department of Education and Department of Justice, under the direction of the new Administration, together issued a “Dear Colleague Letter” (“Letter”) expressly rescinding certain guidance letters from the previous administration, which provided that Title IX’s prohibition of discrimination based on “sex” protects transgender students from discrimination based on their gender identity.
The rights due to a student under Title IX continue to evolve. Title IX prohibits discrimination based on “sex,” which historically has meant that biological male and female students are required to be treated as equals. Recently, a California federal court held that “sex” discrimination also includes discrimination based on a student’s sexual orientation. Videckis v. Pepperdine University, 150 F. 3d 1151 (U.S.C.D. Calif. 2015). Continue Reading Impact on Transgender Students as the Meaning of “Sex” Discrimination Evolves Under Title IX
Colleges and universities are under pressure from all sides to ensure that their policies and procedures for investigating and adjudicating complaints of sexual assault on campus are compliant with Title IX as well as basic notions of fairness and due process.