Very few college attorneys will soon forget the US Department of Education Office of Civil Rights April 2011 “Dear Colleague” letter that dictated to colleges and universities how they were to address complaints of sexual violence. The guidance provided in those 19 pages signed by Russlynn Ali, then Assistant Secretary for Civil Rights, pushed higher ed institutions to use a much lower bar (a preponderance of evidence as opposed to beyond a reasonable doubt standard) as the trigger for disciplinary action on such complaints. It also allowed for double jeopardy in that both the accused and the accuser could appeal a decision of the university disciplinary team. So even if a student was found innocent of the charges, they could be required to go through another whole investigation and “trial”. The length of time for final resolution on any particular complaint rose dramatically resulting in some freshmen not having their case completed by the time they reached graduation.
This month, the OCR issued revised guidance aimed at addressing and resolving complaints in a more timely manner. A new guidance letter by Candice E. Jackson, acting assistant secretary for the Office for Civil Rights, says “OCR’s goal is to swiftly address compliance issues raised by individual complaint allegations, reach reasonable resolution agreement with defined, enforceable obligations place upon recipients directly responsive to addressing the concerns raised in the individual complaint being resolved, and encourage voluntary settlements wherever possible.” The filing of a single complaint would not automatically trigger an investigation of at least 3 prior years worth of complaints to determine if there was a systemic problem. These types of requirements were not only burdensome for the university but also slowed justice for the complainant.
At a speech before the National Association of College and University Attorneys, Jackson and Thomas E. Wheeler, acting assistant attorney general at the U.S. Department of Justice said that their offices will no longer treat informal guidance as a formal regulation, requiring the colleges to comply with specific measures[…]