In 2011 the Obama administration released its now-famous “Dear Colleague” letter that issued new guidelines to institutes of higher education, primarily colleges and universities, concerning their handling of sexual harassment and sexual assault complaints filed by students. Failure to comply with the new guidelines could result in a loss of federal funding, a consequence few schools could afford.
These guidelines became a lightning rod for criticism from both sides of the aisle and resulted in hundreds of lawsuits being filed in federal courts by defendants, mostly male, who had been expelled or otherwise disciplined by their schools. The Trump administration committed itself to issuing new regulations that essentially repeal many of the “Dear Colleague” guidelines. These new regulations were promulgated and took effect on August 14, 2020.
Background: Title IX
Title IX is a section of the Higher Education Act that guarantees equal access to education for all students, regardless of gender, and prohibits discrimination on the basis of sex. In pertinent part, it states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The “Dear Colleague” letter used Title IX as an authority to obligate schools to institute certain measures to protect students, primarily female, who are victimized by sexual harassment/assault. These guidelines contained reforms that were widely considered to be hostile to respondents.
Title IX can be used to protect any student, regardless of their sex, who suffers from sex-based discrimination by a university. The new Title IX regulations, to the extent that they affect sexual harassment/assault complaints, were motivated by a belief that the “Dear Colleague” letter had swung the pendulum of justice so far in favor of complainants that it amounted to unlawful gender discrimination against male respondents.
The Legal Status of Federal “Guidance”
Strictly speaking, “guidance” from the federal government is not normally considered to be legally binding the way regulations and statutes are. It is normally used to inform, explain, interpret, or advise. The 2011 “Dear Colleague” letter, however, has been criticized as an illegal attempt to legislate without providing certain rights, such as the right to challenge or to appeal, by calling it “guidance” and threatening to withdraw federal funding for failure to comply.
Criticisms of the 2011 “Dear Colleague” Letter
The 2011 “Dear Colleague” letter was hailed as a major advance by progressives and feminists, among other constituencies. Other constituencies, however, have criticized this guidance for:
- Mandating that colleges and universities use the “preponderance of the evidence” standard to determine the guilt of someone accused of sexual harassment, sexual assault or rape. This standard is a “more likely than not” or “50 percent plus a feather” standard that is much easier to meet than the “guilt beyond a reasonable doubt” that is applied in criminal trials.
- Requiring schools to allow the complainant to appeal a finding of “not responsible” if it allows the defendant to appeal a finding of “responsible.” Critics allege that this amounts to a form of double jeopardy.
- Strongly discouraging direct questioning during a hearing on the grounds that it would be traumatic for a victim of sexual harassment or sexual assault. Most Universities prohibited direct questions by respondents or their advisor of the complainant or other witnesses.
- Strongly suggesting that Title IX investigations be concluded within 60 days.
Opposition surfaced not only to the 2011 “Dear Colleague” letter but also to common university disciplinary practices that have sprung up in the wake of this guidance. Some schools, for example, prohibited any cross-examination at all, even indirect cross-examination conducted through the defendant’s representative. Other schools drew criticism by relying on a “single investigator” model which abandoned the adversarial model altogether.
The Winds of Change
In September 2017, the Department of Education issued new guidance to replace the Obama-era “Dear Colleague” guidance. This new guidance was considered to be “interim guidance” that would apply only until new regulations were issued. The interim guidance differed from the guidance contained in the 2011 “Dear Colleague” letter in important ways.
The new guidance, for example, eliminated the proposed 60-day deadline to complete a Title IX investigation. It also allows mediation in sexual assault cases, permits schools to raise the applicable standard of proof to “clear and convincing evidence,” and allows schools to permit appeals only for defendants instead of requiring this right to be accorded to either both parties or neither of them.
The New Title IX Regulations
The Department of Education published proposed new Title IX regulations for notice and comment in November 2018. The response from the public was overwhelming, and over 100,000 public comments were received. The new regulations finally took effect on August 14, 2020.
Key Features of the New Regulations
The new regulations incorporate the following key features, many of which are based on court decisions that ruled on cases filed by students who had been subject to disciplinary action by their schools.
- Advisors can cross-examine the opposing parties and any witness.
- Institutes of higher education (“colleges”) must offer counseling or academic accommodations to anyone who alleges an offense, regardless of whether they have filed a formal complaint.
- Defendants must be provided with notice, an opportunity to respond, and a hearing before impartial decision-makers.
- Although complaints must be resolved in a timely fashion, there is no hard deadline.
- Both parties must be provided with accurate and complete information about the entire disciplinary process.
- Schools must investigate both inculpatory and exculpatory evidence, and they must grant equal credibility to complainants, defendants, and witnesses unless there is an individual reason not to do so.
- The Title IX definition of sexual harassment has been changed to exclude activity that may fall within the first amendment rights of the accused. The regulations, however, do not prohibit a school from instituting disciplinary proceedings for such offenses based on the school’s own code of conduct (rather than proceedings based on Title IX).
- Schools are required to respond to sexual harassment incidents and complaints, but they cannot be penalized for failing to do so unless they had actual knowledge of the incident or complaint.
- When a school is legally bound to respond to an incident or complaint, its response must be prompt. It must offer supportive measures to the complainant, explain the process for filing a formal complaint, and meet certain other obligations.
- Schools must deal with incidents or complaints of sexual harassment that occur on their campus, or off-campus in a facility that is owned or controlled by a college or by a college-recognized student organization (a fraternity house, for example). Schools may (but are not obligated to) deal with sexual harassment outside of these boundaries if it concerns one of their students.
- Anyone can report sexual harassment, not just the alleged victim.
- Investigators, decision-makers, and mediators must be trained and must be free from bias or conflicts of interest.
- Schools can use the “preponderance of evidence” standard or the “clear and convincing evidence” standard, but they must choose only one standard and use that same standard whether the defendant is a student, employee, or faculty member.
- The school must provide both the complainant and the defendant with access to all relevant evidence, whether or not the school intends to use it.
- Each party must be given 10 days to respond to the evidence before an investigation is concluded
- The school must issue a written investigation report that summarizes the evidence, provide a copy to both parties, and allow both parties to review and respond to it.
- Live hearings are required.
- Certain rape shield protections are incorporated, but limited exceptions apply.
- The decision-makers may not rely on any statement made by a party who refuses to submit to cross-examination.
The foregoing is only a partial list of the contents of the new regulations.
The Effect of the Biden Presidency
The Biden administration has already committed to changing many sections of the new regulations. Keep in mind, however, that issuing new regulations takes time. It took the Trump administration 43 months, most of President Trump’s term in office, to do so. Moreover, the Biden administration will face a task more difficult than the Trump administration did.
The Biden administration will face new regulations rather than a mere “Dear Colleague” letter that can easily be rescinded. Accordingly, the Biden administration will not be able to issue interim guidance that contradicts the new regulations. Instead, the new administration will have to live with these hostile regulations until they are repealed.
We Can Help You Fight Back
If you have been accused of sexual harassment or sexual assault at your college or university, disciplinary measures are not a foregone conclusion—you can fight back. Indeed, the legal tools available to do so are more plentiful than ever before, and we have successfully defended accused students on many occasions.
Contact student conducts attorney Julie A. Nociolo at E. Stewart Jones Hacker Murphy for a free initial consultation, by filling out our online contact page or by calling one of our offices in Albany, Colonie, Schenectady, Saratoga, or Troy.