With guest editor Kendra Yoch
As an Office for Civil Rights (OCR) investigator, I was surprised by the number of times I saw the same issues again and again in Title IX sexual misconduct investigations. Nowhere was this more evident than with confidentiality issues. Three of the most common repeat confidentiality concerns in Title IX investigations are the failure to adequately describe the impact confidentiality may have on an institution’s investigation, misunderstandings about the information that can be shared with a reporting party after resolution, and the assumption that OCR will not have access to identifying information during an investigation. Let’s unpack these mistakes so that you can avoid them in your next Title IX investigation.
Confidentiality and the Investigation
Students reporting sexual misconduct to schools, colleges, and universities sometimes want to stay anonymous. Unless denying such a request would hinder the school’s ability to provide a safe and nondiscriminatory environment for all students, the request must be respected. And especially in the present climate when the due process rights of responding students are paramount in Title IX investigations, respecting a request not to release a reporting student’s name to a responding student, for instance, can all but foreclose the ability of a school to conduct an investigation and impose any meaningful consequences on the responding student. But many reporting parties who request confidentiality, later claim in OCR complaints that their institution did not complete a full investigation and did not clearly explain the impact respecting their request for confidentiality would have on the school’s ability to investigate and respond.
This is one of those times when Obama-era guidance is still helpful, even though it has been rescinded by the current administration. In the 2014 Questions and Answers on Title IX and Sexual Violence, for example, OCR explained that:
For Title IX purposes, if a student requests that his or her name not be revealed to the alleged perpetrator or asks that the school not investigate or seek action against the alleged perpetrator, the school should inform the student that honoring the request may limit its ability to respond fully to the incident, including pursuing disciplinary action against the alleged perpetrator. The school should also explain that Title IX includes protections against retaliation, and that school officials will not only take steps to prevent retaliation but also take strong responsive action if it occurs. This includes retaliatory actions taken by the school and school officials.
While many of you are delivering this message, as an investigator, I often heard from the school that they explained this process to the reporting student but heard from the reporting student that the school did not. How many times I wished that Title IX coordinators, investigators, and other administrators would prepare forms memorializing some of the most common conversations they had with reporting and responding parties and have the party sign off that the information was shared. This practice takes the guesswork out of the issue for the investigator. So consider preparing and using such forms; you can contact me if you would like help with putting them together.
Information Shared with the Reporting Party After the Investigation
I cannot count the number of times I spoke with passionate attorneys for educational institutions who argued with me about the information that could be shared with the reporting party after an investigation finding that the responding party was responsible for a violation of the institution’s sexual misconduct policy. Attorneys for K-12 public schools were particularly spirited in these conversations, concerned that if they told a reporting student that they disciplined or imposed other consequences on a responding student they would violate FERPA and related state student records laws.
Of course, OCR has long taken the position that “a school must inform the complainant as to whether or not it found that the alleged conduct occurred, any individual remedies offered or provided to the complainant or any sanctions imposed on the perpetrator that directly relate to the complainant, and other steps the school has taken to eliminate the hostile environment, if the school finds one to exist, and prevent recurrence.” Although that language comes from the same 2014 Q&A quoted earlier, OCR continues to maintain this position even after the guidance was rescinded.
The concern? That even telling the reporting student that the allegations against the responding student were founded or unfounded is sharing information about the responding student that is protected by laws governing educational records. To be honest, I share some of the concerns. When I go hunting in FERPA and related state laws for an exception that clearly allows the release of such information, I don’t get a direct hit. Even OCR acknowledged in its 2001 Guidance a “potential conflict between FERPA and Title IX regarding disclosure of sanctions, and that FERPA generally prevents a school from disclosing to a student who complained of harassment information about the sanction or discipline imposed upon a student who was found to have engaged in that harassment.” Although “[e]xceptions [albeit not formal FERPA exceptions] include the case of a sanction that directly relates to the person who was harassed (e.g., an order that the harasser stay away from the harassed student), or sanctions related to offenses for which there is a statutory exception, such as crimes of violence or certain sex offenses in postsecondary institutions,” and although OCR takes the position that Title IX trumps FERPA to the extent any conflict exists, it’s understandable that both administrators and attorneys have some concerns.
But keep this fact in mind to help you sleep at night about sharing information with the reporting party that is directly related to that party: Schools have been complying with the requirements of Title IX in droves for at least the past 19 years, and I am aware of no lawsuit where a reporting party sued under state or federal law after a school released the basic information required by Title IX at the end of an investigation. If anyone is aware of one, please send it my way, but until then, schools can feel fairly confident that complying with these requirements of Title IX will not lead to a FERPA or state student records violation.
OCR Access to Student Information
Representatives of educational institutions also repeatedly raise concerns about whether OCR has the authority to access student information, particularly personally identifiable information about students who are not parties to a dispute. OCR investigators regularly request this information, and they rarely provide a comforting response when asked what authority allows OCR to receive such information.
Again, I do understand these concerns because FERPA does not seem to have an exception directly on point. But a number of legal provisions provide a nice umbrella of protection to schools, colleges, and universities that provide educational record information to OCR. Specifically, the regulations implementing Title VI, which are used in Title IX investigation, say that each school must “permit access” by OCR to “books, records, accounts, and other sources of information” of the institution. “Asserted considerations of privacy or confidentiality may not operate to bar the Department from evaluating or seeking to enforce compliance with this part.” 34 C.F.R. 100.6. FERPA regulations, moreover, allow disclosure of personally identifiable information from education records to, among others, an authorized representative of the Secretary of Education. 34 C.F.R. 99.31(a)(3)(iii). Moreover, the FERPA regulations state that “Authorized representatives” of the Department’s agencies “may have access to education records in connection with an audit or evaluation of Federal or state-supported education programs, or for the enforcement of or compliance with Federal legal requirements that relate to those programs.
Based on these legal authorities, Title IX coordinators, investigators, and other administrators can assume that the records OCR requests will need to be produced, even if they relate to students other than the parties to a complaint. Of course, there are many ways to work with OCR to limit the reach of data requests—a topic for a post for another day—but denying an OCR records request based on the confidentiality of student records is a highly uncertain approach.