Education Department rescinds guidance on sexual violence and Title IX. What now?

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The U.S. Department of Education, led by Secretary Betsy DeVos, released a Dear Colleague Letter on Friday rescinding previous policy regarding sexual violence and Title IX.

The Department of Education on Friday rescinded a 2011 Dear Colleague Letter that provided guidance for schools on how to handle cases of sexual violence under Title IX.

In a new Dear Colleague Letter dated Sept. 22, the department said the 2011 guidance -- along with a second 2014 document from the Office of Civil Rights that addressed questions related to Title IX -- resulted in the "deprivation of rights for many students" and didn't succeed "in providing clarity for educational institutions or in leading institutions to guarantee educational opportunities on the equal basis that Title IX requires."

"Schools face a confusing and counterproductive set of regulatory mandates, and the objective of regulatory compliance has displaced Title IX's goal of educational equity," the Department of Education said in Friday's letter.

The 2011 Dear Colleague Letter had been the subject of intense debate, particularly regarding its mandate that schools use the preponderance of evidence standard when adjudicating cases of sexual violence. This month, Secretary of Education Betsy DeVos said her department would be revisiting the guidance that was issued under President Barack Obama.

Here are some of the implications of Friday's announcement:

Colleges will still handle cases of sexual violence.

A misconception of the 2011 Dear Colleague Letter is that it gave colleges and universities a new responsibility to adjudicate cases of sexual violence. But educational institutions had already managed these types of situations within their own codes of conduct, which often prohibit illegal activities including sexual violence. They also had processes in place for assessing whether that code was broken and, if so, what steps the school would take to discipline the student.

Rescinding the 2011 guidance removes the possibility that a school would receive federal punishment and/or a loss of funding should it be found negligent in properly adjudicating cases involving sexual violence. 

Under Title IX, universities and colleges are still required to respond to sexual harassment, but when it comes to sexual violence, it's more of a gray area.

The Department of Education on Friday established that guidance from 2001 and 2006 be used by schools in the interim. The 2001 guidance says, "The issue is whether the harassment rises to a level that it denies or limits a student's ability to participate in or benefit from the school's program based on sex."

For now, this could create a dilemma for educational institutions. They'll have to decide, with less specific guidance, whether or not experiencing sexual violence creates an inability to access education -- something explicitly addressed in the 2011 Dear Colleague Letter.

Colleges are no longer bound to the preponderance of evidence standard.

The 2011 Dear Colleague Letter established a preponderance of the evidence as the burden of proof for sexual violence cases on college campuses. In other words, the evidence must prove that it's "more likely than not" that the accused committed sexual violence. That's the minimal burden, a lower standard than "clear and convincing" and the commonly referred to "beyond a reasonable doubt."

In Friday's letter, the Department of Education implied that schools had previously "employed a higher clear-and-convincing-evidence standard" before the 2011 guidance was issued.

There will be more changes coming.

In Friday's letter, the department noted that the decision to rescind was "in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits."

It's unclear what future procedures will be outlined in any upcoming guidance or the extent of an official notice and comment window.

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