Education Secretary Betsy DeVos today scrapped a 6-year-old guidance intended to better protect victims of sexual misconduct on college campuses, replacing it with an interim rule she says is meant to strike a more appropriate balance between those accused of sexual misdeeds and their accusers.
The Department of Education's decision today came less than two weeks after DeVos announced that she would begin a new rule-making procedure to determine how best to guide colleges and universities in handing sexual misconduct claims under Title IX, a federal law which prohibits discrimination in education.
In 2011, then-President Barack Obama's administration issued a guidance to colleges and universities reminding them of their responsibilities to investigate and respond to allegations of sexual misconduct under Title IX. While victims' rights groups say it greatly helped victims come forward, critics have said that it created a system in which colleges and universities often punished those accused without legal due process.
As it rescinded the 2011 guidance today, the Department of Education put out an email criticizing both the earlier document and a 2014 question-and-answer sheet circulated to colleges on how to implement it, saying they "ignored notice and comment requirements, created a system that lacked basic elements of due process and failed to ensure fundamental fairness."
The new Q&A circulated today takes a different tack: While it allows colleges and universities to decide whether to continue using a lesser "preponderance of the evidence" standard in deciding claims, it also permits them to move to a tougher "clear and convincing evidence standard" if they so choose.
It also makes clear that while schools still "must takes steps to understand what occurred and to respond appropriately" in cases where sexual misconduct is alleged, they must do so in "a manner that respects the legal rights of students and faculty, including those court precedents interpreting the concept of free speech."
The Q&A tells institutions that interim measures to respond to a claim while it is being investigated – such as restricting contact between the parties, imposing leaves of absence or changing housing or class schedules – may be appropriate, but that schools may not rely on "fixed rules" in deciding what to do in such cases.
"A school many not rely on fixed rules or operating assumptions that favor one party over another, nor may a school make such measures available only to one party," the document said. "Interim measures should be individualized and appropriate based on the information gathered by the (school's) Title IX coordinator."
The policy – which presumably would be replaced by whatever final rule the Education Department settles on in the months to come – places the burden on the school to "gather sufficient evidence to reach a fair, impartial determination" and requires written notice and other legal rights to be afforded to both the accuser and the accused.
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