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U.S. Department of Education Withdraws Prior Title IX Guidance and Issues Interim Guidance on Sexual Misconduct

September 25, 2017

Last Friday, in advance of the public rule-making process concerning schools’ Title IX responsibilities, the U.S. Department of Education rescinded its current Title IX guidance concerning sexual harassment and violence.  Particularly, the Department withdrew its Dear Colleague Letter dated April 4, 2011, and its Questions and Answers on Title IX Sexual Violence dated April 29, 2014.  To assist schools with understanding their obligations concerning investigation and adjudication of Title IX complaints, the Department issued interim guidance in the form of a questions and answers document. 

Notably, the new guidance grants schools the discretion to apply a more stringent evidentiary standard—clear and convincing evidence standard—when investigating and/or adjudicating Title IX complaints.  However, the Department noted that the new guidance does not add requirements to Title IX or impact a complainant’s right to make a complaint.  Lastly, the Department made clear that schools may continue to rely on its Revised Sexual Harassment Guidance issued in January 2001 as well as its Dear Colleague Letter on Sexual Harassment issued on January 25, 2006. 

We will continue to monitor the forthcoming public rule-making process for Title IX regulations, and provide timely updates of future developments to assist our school clients in complying with Title IX. 

The full text to the interim guidance may be found here.

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