Shifting Sands: A New Day for the Accused in Title IX Matters September 27, 2017

By Susan C. Stone, Kristina W. Supler and Samantha Cira

The door has officially been opened for colleges and universities to reexamine how they handle Title IX sexual assault complaints. On September 22, 2017, the Department of Education announced that it was withdrawing the guidelines promulgated by the Obama administration. U.S. Secretary of Education Betsy DeVos released an interim Dear Colleague Letter and a Q&A on Campus Sexual Misconduct.  These new guidance documents rescinded the controversial 2011 Dear Colleague Letter and the 2014 Q&A.

There are several noteworthy changes in the interim Dear Colleague Letter.  First, there is no longer a fixed timeframe within which a school must complete its Title IX investigation.  Second, allowing for additional flexibility in resolving complaints, schools may now employ informal complaint resolution methods such as mediation.  The most notable change in the new guidelines is that schools may decide what evidentiary standard is used to adjudicate complaints.  Schools were previously required to use the preponderance of the evidence standard.  Many reform advocates believe that by allowing schools to utilize a higher standard of evidence, like clear and convincing evidence, accused students will have greater protection against discipline imposed for false claims of sexual misconduct.

While the Department of Education’s interim guidelines are not yet binding and many colleges and universities say that they are unlikely to enact any major changes to their existing policies on sexual misconduct, a formal replacement is expected to be finalized in the next year to 18 months. To stay proactive, campus administrators handling Title IX investigations need to monitor the Department of Education’s future actions and be prepared to reexamine their policies.

In recent months, Secretary DeVos expressed concern about how the 2011 Dear Colleague Letter has been implemented by schools to the detriment of accused students and due process.  Secretary DeVos’ recent announcement has been met with both positive and negative reactions from a variety of advocates on both sides of the debate.  The Department of Education hopes that utilizing a formal comment period in response to the interim guidelines will allow the agency to receive comment from accused students, complainants, campus administrators, parents, and legal experts before more permanent guidelines are established.

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