New DOE Guidance on Sexual Misconduct

The Department of Education has issued an interim Q and A regarding campus sexual misconduct. Although much of the media attention on this issue has focused on higher education, the Q and A is equally applicable to K-12 public schools that are subject to Title IX due to the receipt of federal financial assistance.

The Q and A should be reviewed carefully by your Title IX Coordinator.  Here are six things that I took note of as I reviewed the Q and A:

  1. It tells us that a school “must take steps to understand what occurred and to respond appropriately” when “the school knows or reasonably should know of an incident of sexual misconduct.”  Note: the “should have known” standard applies even though no one has filed a complaint.
  2. The Q and A provides a list of possible “interim measures” that can be made available prior to the completion of an investigation. The document tells us that the school may not “make such measures available only to one party.”
  3. The Q and A provides a description of an “equitable investigation”:

In every investigation conducted under the school’s grievance procedures, 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.  A person free of actual or reasonably perceived conflicts of interest and biases for or against any party must lead the investigation on behalf of the school. Schools should ensure that institutional interests do not interfere with the impartiality of the investigation.

There is a lot more in the Q and A about investigations that merits careful review in your district.

  1. The school can facilitate an informal resolution of the matter through mediation or other means, but only if the parties agree to this after receiving a full disclosure of the allegations and their options for formal resolution.
  2. The decision maker is expected to make findings of fact and conclusions and can use either the “preponderance of evidence” or “clear and convincing evidence” standard. However, the Q and A cautions that schools cannot use an evidentiary standard for sexual misconduct cases that differs from its standard for other cases of student misconduct. Be consistent.
  3. OCR recommends that the notice of outcome of the proceedings should be provided to both parties simultaneously, and in writing. The Q and A tells us that in public schools, the notice should inform the reporting party of any sanctions imposed on the responding party.

On November 15th, TASB is hosting a conference on Title IX, free to members of the TASB Risk Management Fund. They call it: Title IX Symposium: Theory and Practice. In light of this rapidly evolving area of the law, this should be a very valuable conference.  Karla Schultz and Meredith Walker from our law firm will be among the presenters.  Check it out here:  https://www.tasbrmf.org/Member-Service-Center/Risk-Managemespxnt-Member-Solutions/Member-Training/Title-IX-Symposium.a

DAWG BONE: TITLE IX COORDINATORS SHOULD STUDY THIS Q AND A.

Tomorrow: what does “location” mean?