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September 27, 2017
Interim Guidance to Schools and Colleges for Addressing Sexual Misconduct on Campus
On September 22, 2017, the United States Department of Education (the "DOE") issued interim guidance to schools and colleges under Title IX for addressing sexual misconduct allegations, including student-on-student sexual harassment and sexual violence.  The guidance, in the form of a Question and Answer document, was issued in advance of the Department's rule making under Title IX relative to investigating, adjudicating and resolving sexual misconduct accusations.  As a result of this interim guidance, the DOE formally withdrew the Obama Administration's pivotal instructions, commonly referred to as the "2011 Dear Colleague Letter on Sexual Violence," as well as its 2014 question and answer guidance, which will no longer apply to schools and colleges.  Click here for the DOE's interim guidance
The principal changes from the Obama DOE letter are as follows:
  1. The standard of proof applied in disciplinary proceedings adjudicating allegations of sexual misconduct no longer has to be "the preponderance of the evidence" but may be the higher "clear and convincing evidence" standard.  The 2011 "Dear Colleague Letter" required use of the preponderance of the evidence standard.
  2. Schools and colleges may now facilitate an informal process, such as mediation, if both parties voluntarily agree and the parties receive a "full disclosure of the allegations and their options for formal resolution."  The Obama DOE guidance did not allow for mediation, even on a voluntary basis. 

  3. Investigations no longer have to be completed within 60 days, but must be done in "a timely manner."  The Office for Civil Rights will evaluate on a case-by-case basis whether the school conducted a fair and impartial investigation in a timely manner.

  4. Schools and colleges will have flexibility over the appeal process.  If the school or college elects to allow for appeals, which it is not required to do, the school may choose to allow appeal by both parties or just the accused.  Previously, schools and colleges were encouraged to have an appeals process and make it available to both parties. 
If you have any questions on these guidelines, please contact one of the attorneys in the Education Group. 

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