The Department of Education has issued new, interim guidelines on how colleges should handle allegations and investigations of sexual misconduct on campus. It is slightly more protective of the rights of accused students and permits colleges to have more choice in how to handle investigations.
What you should know:
- Schools may opt to use the higher “clear and convincing” standard of proof to find an accused student responsible (meaning, it is highly probably that the misconduct occurred). This is a change from the previously mandated, lower “preponderance” standard (meaning, it is just more likely than not that the misconduct occurred);
- The burden is on the school – not on the parties – to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred and if so, whether a hostile environment has been created that must be redressed;
- Informal mediation is now available to resolve complaints, if both parties agree to it;
- A previously imposed suggestion of 60 days to resolve investigations has been changed to “reasonably prompt” (not defined); and
- Colleges can now set their own policy regarding who can appeal the decision of the investigation. Previously, schools had to allow both the accuser as well as the accused the opportunity to appeal the outcome. Some schools may switch to only allowing the accused to appeal.
Many colleges are choosing not to change their existing policies under this new direction from the Department of Education. A formal rule making procedure will be ongoing, and a new directive will be on the horizon.
The 2017 Dear Colleague Letter:
Click to access colleague-title-ix-201709.pdf
Q&A issued by the Dept:
Click to access qa-title-ix-201709.pdf
If you have questions or are facing a Title IX investigation, contact us at 614.745.2001 / ohiostudentlaw.com