Page 4 - Title IX Toolkit

SIGNIFICANT NEW TITLE IX GUIDANCE

ON HANDLING SEXUAL MISCONDUCT:
WHAT SCHOOLS NEED TO KNOW

FIRM OVERVIEW New guidance on schools’ responsibilities for addressing claims of sexual misconduct under Title IX places
greater emphasis on the rights of those accused of sexual misconduct. The new guidance marks a significant
Practice Areas departure from prior guidance but lacks details, creating the potential for many issues requiring legal consul-
Charter Schools tation.
Community Colleges
Facilities & Business On September 22, the United States Department of Education issued interim guidance on schools’ respon-
Labor & Employment sibilities in addressing sexual misconduct and rescinded a 2011 Dear Colleague Letter (DCL) and a 2014 Q&A
Litigation document, which were both intended to provide more support for those making sexual misconduct com-
Local Government/ plaints. The Department plans to go through a notice and comment period before putting new, permanent
Special Districts
Public Finance guidance in place.
Special Education
Students Separately, California lawmakers are seeking to return to the standards laid out in the 2011 DCL in Senate Bill
Technology & Innovation (SB) 169, which was approved by the Legislature and is awaiting Governor Jerry Brown’s signature or veto. If
the bill is signed, educational institutions may wish to consult with legal counsel regarding potential conflicts
between federal guidance and state law.

Statewide TITLE IX AND SEXUAL MISCONDUCT
Bakersfield Title IX requires educational institutions, including school districts, county offices of education and communi-
Fresno ty college districts, to do the following:
Los Angeles
Mission Viejo > Designate a Title IX coordinator to accept reports of sexual misconduct and to oversee Title IX compliance;
Monterey > Investigate and respond to allegations of sexual misconduct involving students;
Sacramento > Prior to investigating a complaint, offer assistance to complainants such as counseling, medical services
San Diego
Walnut Creek and class schedule modifications;
> Provide both parties with an equal opportunity to present evidence;
> Notify parties of the outcome of the complaint; and
Authors > Take steps to prevent recurrence of sexual misconduct and to remedy its discriminatory effects.

WHAT DOES THE INTERIM GUIDANCE DO?
The interim guidance, released as a Q&A document (2017 Q&A), changes how the Department will evaluate
whether schools’ procedures satisfy Title IX’s procedural requirements. For example, it could loosen the time
frame for investigating sexual misconduct claims and raise the standard of evidence required to prove them.
It may also provide new rights for the accused, including the right to interim measures (described below) and
Michelle L. Cannon written notice of the accusations against them.
mcannon@lozanosmith.com
INTERIM MEASURES
The 2017 Q&A makes it clear that interim measures must be extended, as appropriate, to both accused and
complainants. Interim measures are temporary measures that are put into place to stop sexual miscon-
duct, protect involved parties and preserve the integrity of the investigation. The 2014 Q&A had emphasized
interim measures that avoided impact to the complainant’s educational environment. The 2017 Q&A states
Trevin E. Sims that interim measures should “avoid depriving any student of his or her education” and that “a school may
tsims@lozanosmith.com not rely on fixed rules or operating assumptions that favor one party over another, nor may a school make
such measures available only to one party.” The 2017 Q&A does not provide specific examples for evaluating
the appropriateness of interim measures, but the revised wording and enhanced focus on the rights of the ac-
cused suggest that the Department may be more critical of procedures that do not give equal consideration
to the interim needs of the accused and the complainant.

Stephanie M. White
swhite@lozanosmith.com

California’s Premier Public Agency Law Firm LozanoSmith.com