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Education Department Signals Possible Changes to Sexual Misconduct Dear Colleague Letter

By Susan D. Friedfel and Crystal L. Tyler
  • August 16, 2017

The Department of Education Office for Civil Rights has suggested that it is considering significant changes to or rescission of the April 4, 2011, Dear Colleague Letter on schools’ obligations to respond to sexual misconduct (“2011 DCL”).

On August 11, 2017, the government requested a 90-day stay in the matter of Doe v. Jackson “while the Department of Education’s Office for Civil Rights reviews the 2011 Dear Colleague Letter that is challenged in this litigation.” The U.S. District Court for the District of Columbia has granted the motion.

Background

The lawsuit was filed in June 2016 by plaintiff John Doe, a former student who was found to have violated his school’s policy against sexual misconduct. An amended complaint was filed in August 2016 to include Oklahoma Wesleyan University as a plaintiff.

The plaintiffs assert three causes of action under the Administrative Procedure Act:

  1. “action pursuant to unlawful procedure”;
  2. “action in excess of statutory authority”; and
  3. “arbitrary and capricious action.”

The plaintiffs’ principal objections are the lack of a public comment period prior to the issuance of the 2011 DCL, the imposition of the preponderance of the evidence standard for adjudicating claims of sexual misconduct, and the publication of the names of schools being investigated.

The Obama Administration moved to dismiss the amended complaint for lack of subject matter jurisdiction on September 1, 2016. That motion was fully briefed, but a decision has not been rendered. On November 1, 2016, the plaintiffs filed a motion for summary judgment. On November 4, 2016, prior to Election Day, the government moved to suspend briefing on the motion for summary judgment and/or for an extension of time to file opposition. The government has not yet filed opposition to the plaintiffs’ motion for summary judgment.

Education Department Discussions

In support of its motion for a stay, the government argued that holding the case in abeyance for 90 days would promote judicial economy in that the Secretary of Education, Betsy DeVos, and her staff have been engaged in “ongoing discussions with students, parents, educational institutions, advocacy groups, and experts to learn about their experiences and to hear their views of how the Department can best fulfill its obligations under Title IX.”

Not only has the government sought a stay in Doe v. Jackson, Secretary DeVos also made public statements indicating her view that changes must be made. It has been reported that, during an interview with the Associated Press on August 9, 2017, when asked whether she intended to withdraw the DCL, DeVos responded:

What we are continuing to do is listen to and talk with individuals from all perspectives on this issue because as we know as a fact no matter where we’re coming from, whether you’re a survivor, whether you’re an accused individual, whether you’re part of an institution charged with navigating these issues, it is not working right and well for anyone. All the individuals I’ve talked with have said we need to have a process and a system that we know is right and fair for everyone involved. So, we’re continuing to have those conversations and are continuing to learn and to research what some of the options might be going forward. But we know we have to get this right. We have to get this right on behalf of all students. I think it goes without saying, but I’ll say it, sexual assault anywhere at any time is horrible and we need to decry it and at the same time we need to ensure that the processes to address it when it happens are done right.

***

Another Dear Colleague Letter was rescinded shortly after President Donald Trump took office. The Department of Education and the Department of Justice on February 22, 2017, rescinded the Obama Administration’s May 2016 Dear Colleague Letter directing that schools “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” (For details, see our article, Trump Administration Rescinds Guidance on Transgender Rights under Title IX.)

For the time being, the 2011 DCL remains in effect, but we anticipate that there may be changes announced in the next 90 days. Jackson Lewis will keep you informed on significant developments. Please contact a Jackson Lewis attorney with any questions.

©2017 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

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