Additional Guidance on Title IX and Sexual Violence

 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 jjohnston@thrunlaw.com.