Page 5 - Title IX Toolkit

INVESTIGATION TIME FRAME Educational institutions may choose to apply either a preponder-
The 2017 Q&A provides that there is no fixed time frame in which ance of the evidence standard (i.e., more likely than not) or a more
schools are expected to complete an investigation. As a result, rigorous clear and convincing evidence standard (i.e., substantially
the suggested 60-day “safe harbor” period contained in the more likely than not). While an educational institution has the
withdrawn guidance will apparently no longer be the bar against discretion to apply either standard, the 2017 Q&A provides that the
which the promptness of investigations is measured. Instead, standard selected for Title IX investigations should be consistent
while schools must still establish reasonable timelines, whether an with the standard the school applies in all other student miscon-
investigation was in fact conducted timely will be measured on a duct cases.
case-by-case basis. Schools should be mindful of timelines that
may apply to sexual misconduct complaints under their internal WRITTEN REPORTS/NOTICE OF FINDINGS OF
policies and state law, including the Uniform Complaint Procedures FACT
and Title 5 of the California Code of Regulations. The 2017 Q&A provides that a written report summarizing the rele-
vant evidence should be completed at the conclusion of each Title
DISCLOSURE OF INFORMATION AND CONFIDEN- IX investigation. No specific guidance is provided in the 2017 Q&A
TIALITY regarding notice to the parties of the factual findings resulting from
The 2017 Q&A provides that initial disclosures regarding allega- the investigation, other than to state that notice is required and
tions of sexual misconduct should be made to the accused if an that parties must have timely and equal access to any information
educational institution initiates an investigation. The disclosure that will be used during disciplinary proceedings that follow.
should be in writing and should include:
DISCIPLINARY HEARINGS
> The identities of the parties involved; The 2017 Q&A makes it clear for the first time that the investigation
> The specific section of the code of conduct allegedly violated; report must be offered to both parties if it will be used during any
> The precise conduct allegedly constituting the potential viola- informal or formal disciplinary meeting or hearing, and that the
tion; and parties should be given the opportunity to respond to the report in
> The date and location of the alleged incident. writing in advance of the decision of responsibility or a hearing to
decide responsibility. The Department had not previously issued
The 2017 Q&A does not include procedures that would allow a any guidance related to the disclosure of an investigation report in
complainant to request confidentiality. However, the Department’s Title IX matters.
2001 Revised Sexual Harassment Guidance, which remains in
effect, provides that the institution should consider a student’s Educational institutions still have the option to offer the right
request for confidentiality and evaluate the request in conjunc- to appeal the decision on responsibility and/or any disciplinary
tion with its duty to provide a safe environment for all students. decision to both the complainant and the accused, though the
Educational institutions should consult with legal counsel prior to 2017 Q&A permits schools to limit the right to appeal only to the
issuing this type of written notice to a responding party in cases accused. Similar to prior guidance, the 2017 Q&A recommends
where a student has requested confidentiality. that written notice of the outcome of disciplinary proceedings be
issued to both parties concurrently.
INFORMAL RESOLUTION AND MEDIATION
The 2017 Q&A states that informal resolution of complaints, in- Going forward, the Department has said that in addition to the
cluding through a mediation process, may be deemed appropriate 2017 Q&A, schools may continue to rely its 2001 Revised Sexual
by a school if the parties involved agree to such a voluntary resolu- Harassment Guidance as well as its 2006 DCL on Sexual Harass-
tion after receiving full disclosure of the allegations and options for ment as it solicits input on new, permanent guidance. Additional-
formal resolution. The 2011 DCL had expressly stated that media- ly, any existing resolution agreements that educational institutions
tion was not appropriate in cases of alleged sexual assault, as did entered into with the Department’s Office for Civil Rights will not
the 2001 DCL, which is still in effect. The new guidance appears to be impacted by the change in guidance and will continue to be
grant schools discretion, with the consent of both complainant and binding.
accused, to use mediation even in cases of alleged sexual assault. For questions about the significant changes made by the new
Due to the inconsistency between the 2001 and 2017 guidance, guidance or Title IX obligations to address sexual misconduct in
districts should proceed with caution and consult counsel if consid- general, please contact the authors of this Client News Brief or an
ering mediation in sexual assault cases.
attorney at one of our eight offices located statewide. You can
STANDARD OF PROOF also visit our website, follow us on Facebook or Twitter or download
The 2017 Q&A provides discretion to educational institutions our Client News Brief App.
regarding the standard of proof to use in making findings of fact.

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