By Zach Winn · February 28, 2017
Title IX compliance has taken up an increasing amount of space in school administrator’s minds since its reach was expanded by a Dear Colleague Letter in 2011.
That letter, issued by the Department of Education, stated, “The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.”
Schools were thus told to investigate allegations of sexual harassment, sexual assault or dating violence and act based on the preponderance of evidence standard (meaning the majority of the evidence indicates responsibility).
VCU Criminal Justice Professor Christina Mancini, Ph.D., who studies Title IX policy extensively, notes that mandating the preponderance of evidence standard marked a dramatic change from the previous “clear and convincing” standard many schools used as a burden of proof in sexual assault and other sexual violence cases.
“The end result is that it is easier to hold students accountable under Title IX,” Mancini says. “That worries some groups, particularly those concerned with the due process rights of the accused students.”
Regardless of the debate, schools and universities are all too familiar with the consequences of failing to follow these new guidelines.
But many school officials aren’t familiar with the exact process the Office for Civil Rights goes through after receiving a Title IX complaint.
Below is a breakdown of the OCR’s standard operating procedures when it comes to Title IX, which is part of the Education Amendments of 1972, along with the paths schools can take to respond to these procedures.
Types of Discrimination Covered By Title IX
- Sexual harassment
- Sexual violence
- Failure to provide equal athletic opportunities
- Discrimination on a school’s science, technology, engineering and math programs
- Discrimination based on pregnancy or parenting
Step 1: Evaluating the Title IX Complaint
Every complaint submitted to the Office for Civil Rights is reviewed by government officials to determine if they have the legal authority to further investigate.
First, the OCR breaks down each individual allegation in the complaint to determine if any of the allegations describe sex discrimination or a violation of another law the OCR enforces.
The office typically only reviews complaints received within 180 days of the last act of discrimination on the basis of sex.
Finally the OCR must determine if there is enough information in the Title IX complaint to proceed. If there is insufficient detail, government officials may reach out to the person who filed the complaint. They then have 20 days to respond to the OCR’s request.
Other reasons the OCR may dismiss the complaint include:
- The allegations in the complaint were resolved
- The allegations were investigated by another civil rights agency or through due process proceedings in a way that meets the OCR’s regulatory standards or another comparable resolution process
- The same allegations were filed by and against the same actors in a state or federal court
- The allegations are foreclosed by a qualified legal body’s previous decision (including the Secretary of Education and the Department of Education’s Civil Rights Reviewing Authority)
Step 2: The OCR’s Title IX Investigation
After the federal government decides the complaint passes the above standards, the OCR will notify the parties involved with a letter. From there, the OCR will attempt to collect and analyze relevant evidence from all appropriate sources in a “legally sufficient” manner. The Department of Education considers the OCR a “neutral fact-finder” during this process.
The methods of Title IX investigation may include review of relevant documentation submitted by affected parties, interviews and/or campus visits. The OCR will either decide that there is insufficient evidence or that the institution violated the law based on the preponderance of evidence standard.
The OCR must then explain its findings in a letter to the involved parties.
Options for Schools Before the End of the Investigation
A school or college may reach a settlement with the person that filed the complaint in a process known as an Early Complaint Resolution, or ECR. An ECR can be accomplished if both parties are willing to talk and the OCR determines that an ECR is appropriate.
This typically occurs shortly after the OCR’s Title IX investigation begins and will be facilitated by OCR officials. Although the OCR does not monitor the aftermath of an ECR, the complainant can file another complaint with the OCR within 60 days of learning the institution has violated the agreement.
Another option a school or college may have is negotiating a resolution agreement with the OCR before the end of the investigation. The OCR must determine that such a resolution is appropriate and give the person that filed the complaint updates through each stage of the process. The agreement must address the allegations in the complaint and any Title IX violations found during the OCR’s investigation.
The OCR will monitor these resolution agreements to ensure ongoing compliance.
Step 3: After the OCR’s Title IX Investigation
Finally, if the OCR determines that a Title IX violation occurred, it will attempt to negotiate and sign a written resolution agreement with the school that describes actions the institution will take to solve areas of Title IX non-compliance. The terms of the agreement will correct any violations found by the OCR. The OCR will then monitor the institution to confirm it’s eliminated any problems.
If a school or college refuses to negotiate (institutions typically have 30 days to express interest in negotiations), the OCR will send a Letter of Finding of noncompliance that gives a legal basis for its findings.
If a school of college still refuses to negotiate, the OCR will send a Letter of Impending Enforcement Action seeking voluntary efforts to come into compliance with Title IX. Finally, the OCR will begin the process of suspending or terminating the institution’s federal financial assistance. The case may also move to the Department of Justice.
Institution’s Right to Appeal
A school or college (or complainant) may submit an appeal arguing the OCR’s evidence was insufficient, facts were incorrect or the appropriate legal standard was not applied with respect to Title IX.
Institutions have 60 days from the date of the determination letter to file an appeal. During this process, the school can bring additional information to the OCR to change the office’s ruling.
A written response to the appeal will be sent from the Office Director indicating a final decision. The only other option after that is for an institution to file a separate lawsuit in federal court.