Update on Sept. 23, 2017
On Friday, September 22, 2017, the U.S. Department of Education announced that it was rescinding the 2011 and 2014 guidance on implementing Title IX law on sexual misconduct. The Department issued new interim guidance in advance of the notice and comment period that will lead to new guidance for educational institutions about our responsibilities.
Title IX law prohibiting sexual misconduct is still in place. Friday’s action does not change the fundamental obligations of institutions under the law. We are still in the process of reviewing what, if any, adjustments in practice might need to be made, and we will keep the community informed.
Listed below are specific parts of the new guidance that depart significantly from what the DOE required prior to Friday’s announcement, and the implications of each for Amherst:
- The new guidance permits schools to use either the “preponderance of the evidence standard” that the earlier guidance required or the “clear and convincing standard.” However, in a footnote to the guidance, the DOE states that “the standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases.” At Amherst College, we use the preponderance of the evidence standard in other student misconduct cases and will comply with the new guidance by continuing to use the preponderance standard in sexual misconduct cases.
- The new guidance permits schools to allow appeals solely by the responding party rather than by both parties, as the previous guidance required. It also permits schools to allow appeals by both parties (provided that the appeal procedures are equally available to both parties). At Amherst College, we have made appeals equally available to both parties for all student misconduct cases and will continue to do so.
- The new guidance states that a school may facilitate an informal resolution “if all parties voluntarily agree” and if “the school determines that the particular Title IX complaint is appropriate for such a process.” At Amherst we will continue to abide by the restriction in the 2001 guidance from the Department of Education—which has not been rescinded—that “mediation will not be appropriate even on a voluntary basis” in cases of alleged sexual assault.
- The new guidance states that “there is no fixed time frame under which a school must complete a Title IX investigation.” It also makes clear that schools must continue to conduct investigations “promptly.” At Amherst, the time frame for review and resolution of all complaints will continue to be 60 to 90 days, except when there are extenuating circumstances as set forth in our policy.
At Amherst we take sexual misconduct and sex- or gender-based discrimination extremely seriously. We have worked hard to create educational programs aimed at preventing sexual misconduct and making everyone aware of their responsibilities when it occurs. We encourage members of our community to report instances of discrimination and misconduct. We are committed to redressing the harm that is done by sexual harassment and assault. We will continue to review our policies and procedures to evaluate if they are meeting the needs and expectations of our community. Our policy and practices are guided by the principles of integrity and respect for all students involved in a report of sexual misconduct, and that will not change.
The Amherst College Title IX Office is ready as always to assist any community member affected by sexual misconduct or other differential treatment based on sex or gender, as well as any community member who has questions or concerns about our policies or practices. Please do not hesitate to reach out to our Title IX coordinator, Laurie Frankl, at 413-542-5707 or firstname.lastname@example.org.