The Trump administration drew back Title IX guidance on campus sexual misconduct on Friday, replacing it with “interim” guidance in the form of a question-and-answer document.
U.S. Department of Education Secretary Betsy DeVos promised to rescind previous guidance earlier this month, saying that “the system established by the prior administration has failed too many students.” She declared the “era of rule by letter” to be over, pledging to create new regulation after a public comment and notice period.
Last week, DeVos introduced new interim instructions to institutions while the department waits to implement a more formal rulemaking process. In a statement, the secretary said that the new guidance was an attempt to ensure that all students are treated fairly, be they the victim or the accused.
“Schools must continue to confront these horrific crimes and behaviors head-on,” DeVos said. “There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”
The new guidance contained several important changes. One particularly controversial element of the Obama-era 2011 mandate was its call for schools to use the preponderance of evidence standard — a lower standard of proof — when adjudicating campus sexual assault. Under the ED’s new question-and- answer document, institutions may now use either a preponderance of the evidence standard or a clear and convincing evidence standard.
Bisi Okubadejo, an attorney who served in the Office for Civil Rights during both the Bush and Obama administrations, said that the new policy leaves some leverage for schools to maintain the status quo, at least until ED issues more formal guidance. “I think in at least the near term, most schools are likely to implement their existing Title IX policies,” Okubadejo said. “While the rescission of the letter obviously is significant I think there still remains flexibility for schools to retain aspects of their current practices,” Okubadejo said.
Sexual assault survivors argue that the changes represent a step backwards.
