By Attorneys Emily Kolbe and Rebecca Reif
On September 22, 2017, the U.S. Department of Education issued a "Dear Colleague" letter withdrawing two previous statements of policy/guidance on Title IX. The withdrawn statements are:
- The Dear Colleague Letter on Sexual Violence, issued by the Department on April 4, 2011; and
- The Questions and Answers on Title IX and Sexual Violence, issued by the Department on April 29, 2014.
The withdrawal letter cites legal commentators' criticism of the guidance documents for "placing 'improper pressure upon universities to adopt procedures that do not afford fundamental fairness,'" and/or are "overwhelmingly stacked against the accused." The letter states that while the documents "may have been well-intentioned," the Department finds they have "led to the deprivation of rights" for both complainants and the accused in sexual misconduct cases. The Department also questions the lack of notice and public comment prior to the guidance documents' releases, and states it intends to engage in rulemaking and public comment in adopting a new approach. The Department will no longer rely on the guidance documents in enforcing Title IX. The withdrawal letter is available here.
The Department also contemporaneously issued a "Q&A" on Title IX enforcement following withdrawal of the guidance documents, available here. The Department will continue to enforce its Revised Sexual Harassment Guidance, issued in 2001, and its January 25, 2006 Dear Colleague Letter reaffirming that guidance.
Institutions of higher education should note that these changes do not affect their obligations under other federal law, including specifically the Jeanne Clery Act. As noted in the new Q&A, the Violence Against Women Reauthorization Act of 2013 amended the Clery Act to require statistical compilation and statements of policy regarding dating violence, domestic violence, stalking, and sexual assault, and these amendments are not affected by the Department's actions, interpretations, or enforcement of Title IX.
We will be monitoring the Department's actions as it moves forward with this ongoing process. If you have further questions, please contact one of the Ahlers & Cooney Higher Education Practice Group attorneys listed below.
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