The U.S. Department of Education’s Office for Civil Rights has issued a “significant guidance document” on Title IX and sexual violence. A copy of the guidance can be found on the OCR website at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
The guidance is designed only to clarify, not expand, the obligations of schools under Title IX. OCR issued the guidance the same week that it announced it was investigating 55 universities across the country for Title IX violations.
Title IX of the Education Amendments of 1972 prohibits sex discrimination, including sexual violence, in educational programs that receive federal funding. OCR enforces Title IX and may initiate an investigation if it receives a complaint or on its own accord.
With respect to sexual violence, OCR will investigate whether the school investigated the alleged incident and whether it responded promptly and effectively. OCR also will look at whether the school protected the victim during the course of the investigation, which likely requires that interim measures, such as separation from the alleged perpetrator, be put into place.
OCR has never supported an “innocent until proven guilty” stance during an investigation. Failure to separate the victim from the alleged perpetrator or to take other interim measures may result in corrective action. To avoid this prospect, school officials should ensure that the victim is not penalized as a result of the interim measures.
If OCR finds a violation, it usually will order the school to take corrective action. Corrective action typically involves revising school policies and procedures, staff or student training, participation in “climate surveys”, and counseling for the victim. OCR will monitor compliance in later school years.
Given OCR’s increased focus on Title IX and sexual violence, we recommend that school officials review the questions and answers provided in the guidance and revise current policies as necessary to ensure compliance. Thrun Law Firm recently developed policy and investigation document templates addressing sex-based harassment that OCR has reviewed and approved for use in Michigan schools. If you are interested in these documents for your school, please contact Thrun Law Firm attorney Jennifer Johnston at (517) 374-8834 or firstname.lastname@example.org.