October 30, 2017
TITLE 9
Continued from page 3
tuting the potential violation; and
• The date and location of the alleged
incident.
The 2017 Q&A does not include pro-
cedures that would allow a complainant
to request confidentiality. However, the
USDOE’s 2001 Revised Sexual Harassment
Guidance, which remains in effect, pro-
vides that the institution should consider
a student’s request for confidentiality and
evaluate the request in conjunction with its
duty to provide a safe environment for all
students. Educational institutions should
consult with legal counsel prior to issuing
this type of written notice to a responding
party in cases where a student has requested
confidentiality.
Informal resolution
The 2017 Q&A states that informal
resolution of complaints, including through
a mediation process, may be deemed appro-
priate by a school if the parties involved
agree to such a voluntary resolution after
receiving full disclosure of the allegations
and options for formal resolution. The 2011
DCL had expressly stated that mediation
was not appropriate in cases of alleged sex-
ual assault, as did the 2001 DCL, which is
still in effect. The new guidance appears to
grant schools discretion, with the consent of
both complainant and accused, to use medi-
ation even in cases of alleged sexual assault.
Due to the inconsistency between the 2001
and 2017 guidance, districts should proceed
with caution and consult counsel if consid-
ering mediation in sexual assault cases.
Standard of proof
The 2017 Q&A provides discretion to
educational institutions regarding the stan-
EDCAL 9
dard of proof to use in making findings of
fact. Educational institutions may choose
to apply either a preponderance of the
evidence standard (i.e., more likely than
not) or a more rigorous clear and convinc-
ing evidence standard (i.e., substantially
more likely than not). While an educational
institution has the discretion to apply either
standard, the 2017 Q&A provides that the
standard selected for Title 9 investigations
should be consistent with the standard the
school applies in all other student miscon-
duct cases.
Findings of fact
The 2017 Q&A provides that a written
report summarizing the relevant evidence
should be completed at the conclusion of
each Title 9 investigation. No specific guid-
ance is provided in the 2017 Q&A regard-
ing notice to the parties of the factual find-
ings resulting from the investigation, other
than to state that notice is required and that
parties must have timely and equal access
to any information that will be used during
disciplinary proceedings that follow.
Disciplinary hearings
The 2017 Q&A makes it clear for the
first time that the investigation report must
be offered to both parties if it will be used
during any informal or formal disciplinary
meeting or hearing, and that the parties
should be given the opportunity to respond
to the report in writing in advance of the
decision of responsibility or a hearing to
decide responsibility. The USDOE had not
previously issued any guidance related to
the disclosure of an investigation report in
Title 9 matters.
Educational institutions still have the
option to offer the right to appeal the deci-
sion on responsibility and/or any disciplin-
ary decision to both the complainant and
the accused, though the 2017 Q&A permits
schools to limit the right to appeal only to
Distance learning in Region 1
Region 1 Curriculum and Instructional Leaders Academy participants at the Humboldt County Office
of Education break ground on their distance learning academy, which takes place in three loca-
tions, Humboldt, Del Norte and Shasta COEs. The academy enables new or aspiring C&I leaders to
develop fundamental skills needed to address standard-based reforms, including assessment, cur-
riculum, monitoring and evaluation of instructional programs within the context of Local Control and
Accountability Planning and the Local Control Funding Formula. Visit www.acsa.org/academies for
more information on this and other ACSA Academies.
the accused. Similar to prior guidance, the
2017 Q&A recommends that written notice
of the outcome of disciplinary proceedings
be issued to both parties concurrently.
Going forward, the USDOE has said
that in addition to the 2017 Q&A, schools
may continue to rely on its 2001 Revised
Sexual Harassment Guidance, as well as
its 2006 DCL on Sexual Harassment as it
solicits input on new, permanent guidance.
Additionally, any existing resolution agree-
ments that educational institutions entered
into with the U.S. Department’s Office for
Civil Rights will not be impacted by the
Paid Advertisement
change in guidance and will continue to be
binding.
n n n
Related resources
Lozano Smith’s Title 9 Impact team
has developed the Administrator’s Guide to
Processing Student Complaints of Sex and
Gender-Based Discrimination and Sexual
Harassment Under Title 9. Request your copy
by emailing [email protected].
More information on Lozano Smith can be
found on their website at www.lozanosmith.
com.