UVA’s Title IX Resolution Agreement and Interpretive Challenges. Another Look.

The more that I have reviewed the Resolution Agreement between the Office for Civil Rights and the University of Virginia (and the accompanying letter to the President of the UVA), the more I have questions about various aspects of OCR’s findings and the challenges presented to educational institutions in trying to meet OCR’s interpretations of what constitutes compliance with Title IX.

One example of the vagaries of the interpretative challenges has to do with OCR’s finding related to UVA’s disciplinary appeal process.  In particular, as contained on page 12 of OCR’s letter to the UVA President it is stated that:

 ” … each party had 14 days to appeal the SMB’s decision to the University’s Judicial Review Board, and that the Judicial Review Board Appeals Procedure would govern appeals. However, the Judicial Review Board Appeals Procedure did not contain a timeframe for resolution of the appeal, as required by Title IX. Thus, OCR found that the University failed to comply with Title IX because the SMP, as written, did not include a timeframe for the appeals process and, thus, could not ensure prompt resolution of complaints of sexual harassment filed under Title IX.”

So in its letter OCR clearly states that UVA was not compliant with Title IX because it did not specify a time period within which its disciplinary appeal process would be concluded.  Yet, in its various recent pronouncements it clearly appears that OCR indicated that institutions did not have to specify a time frame for the appeal process to be concluded.
The Dear Colleague Letter issued in 2011 by OCR was the first time that it articulated the need for an institution to specify time frames for the major stages of its Title IX procedures.  Specifically, as contained on pages 12-13 of the DCL, it is stated that:

“OCR will evaluate whether a school’s grievance procedures specify the time frames for all major stages of the procedures, as well as the process for extending timelines. Grievance procedures should specify the time frame within which: (1) the school will conduct a full investigation of the complaint; (2) both parties receive a response regarding the outcome of the complaint; and (3) the parties may file an appeal, if applicable. Both parties should be given periodic status updates. Based on OCR experience, a typical investigation takes approximately 60 calendar days following receipt of the complaint. Whether OCR considers complaint resolutions to be timely, however, will vary depending on the complexity of the investigation and the severity and extent of the harassment. For example, the resolution of a complaint involving multiple incidents with multiple complainants likely would take longer than one involving a single incident that occurred in a classroom during school hours with a single complainant.” [Emphasis Added].

Given the clear language contained in the DCL it is a bit puzzling that OCR would find that UVA was not Title IX compliant because it did not specify a time period within which an appeal would be concluded.

Further confusion on this issue is added by the “Questions and Answers” document that was subsequently issued by OCR in 2014.  In Q&A F-8 OCR addressed the question of the stages of an investigation that are included in the 60-day timeframe referenced in the DCL as the length for a typical investigation.  In its answer OCR specifically mentioned that the time frame did not include appeals. However, OCR did caution that ” …  an unduly long appeals process may impact whether the school’s response was prompt and equitable as required by Title IX.”

I suppose it could be said that OCR meant to indicate  that institutions were required to specify a time period within which disciplinary appeal process was to be concluded.  BUT, I suggest that when read in tandem with the DCL it was more reasonable to interpret this language as meaning that when processing appeals an institution needed to be mindful of not taking too long to conclude an appeal.  If that was not the case, the Q&A could have more specifically addressed & clarified the language of the DCL, which only spoke to designating a time period within which an appeal was to be filed. In addition, if OCR’s expectation was that a time period was to be designated for the conclusion of the appeal process, OCR could have given a time period within which they believe it would typically take to process and render a decision on an appeal.  If that sort of a “safe harbor” could be provided as to the investigatory process, then certainly it could have been provided in relation to OCR’s expectation for the processing of an appeal.

So the best that I can offer on this issue is that based on the UVA case, despite what OCR has previously written they expect a time-frame to be designated for the processing of an appeal.  With OCR having not specified a designated time period that is acceptable, I suppose that the time frame specified by UVA in its process can be viewed as a current safe harbor.

Thank you for reading.  Comments are welcome, please let me know what you think (good, bad, indifferent, agreeable, or disagreeable).  

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