Changes to Title IX Guidance

October 3, 2017

Victims’ rights groups and others have denounced changes made to the handling of sexual conduct claims on college and university campuses under Title IX, a federal law that prohibits discrimination in education. However, Education Secretary Betsy DeVos believes that the interim rule will strike a more appropriate balance between those accused of sexual misdeeds and their accusers. The decision came less than two weeks after DeVos said that she would begin a new rule-making procedure to determine how to best guide colleges and universities in handling sexual misconduct claims.

The interim rule replaces guidance issued in 2011 by then-President Barack Obama’s administration, which reminded educators of their responsibility to investigate and respond to allegations of sexual misconduct under Title IX. Although certain victims’ rights groups believed the guidance helped victims to come forward, critics believe it created a system in which the accused were often punished without legal due process.

As the guidance was rescinded, the Department of Education issued an email that criticized the earlier document and a question-and-answer sheet that was circulated in 2014, which explained how to implement it. The email stated that the documents “ignored notice and comment requirements, created a system that lacked basic elements of due process, and failed to ensure fundamental fairness.”

A new Question-and-Answer sheet includes the following information:

• It allows colleges and universities to decide whether to continue using the lesser “preponderance of evidence” standard when deciding claims
• It permits colleges and universities to move to a tougher “’clear and convincing evidence” standard if they deem it appropriate
• It clarifies that schools must still “take steps to understand what occurred and to respond appropriately,” but that 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”
• It states that institutions may restrict contact between the parties, impose leaves of absence, change housing or class schedules, or take other appropriate measures, but they must not rely on “fixed rules”
• It explains that interim measures must be “individualized and appropriate based on the information gathered by the (school’s) Title IX coordinator”

The new policy, which may be replaced if the Education Department settles on a final rule in the months ahead, places the burden on the school to gather sufficient evidence to reach a fair and impartial determination. It also requires that both the accuser and the accused are afforded written notice and other legal rights. Ms. DeVos stated that “Schools must continue to confront these horrific crimes head on. There will be no more sweeping them under the rug. But the process must also be fair and impartial.”

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If you have been the victim of sexual abuse, you need a tough advocate. Contact the law offices of Jacobs & Crumplar, P.A. at 302-656-5445 to schedule a confidential consultation with a dedicated and highly skilled Wilmington sexual abuse lawyer, or you can contact us online. We will provide the compassionate guidance you need to secure the justice you deserve. From our offices in Wilmington and Georgetown, we represent clients throughout Delaware.