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As debate rages on, DeVos revises guidelines on campus sexual assault

On Friday, the Department of Education announced that it is officially withdrawing Obama-era Title IX guidance, offering alternative guidelines instead that will be in place until after the current period of public comment. 

Mike Theiler/Reuters
Education Secretary Betsy DeVos makes remarks during a major policy address on Title IX enforcement at George Mason University on Sept. 7.

Schools investigating claims of sexual misconduct will no longer be required to adhere to Obama-era federal guidelines, the Department of Education announced Friday, drawing criticism and praise from across the political spectrum. 

The Department of Education is officially rescinding a 2011 Dear Colleague Letter on Sexual Violence and 2014 Question and Answer document, secretary of Education Betsy DeVos said in a news release, citing concerns about a lack of fairness and due process in campus investigations. The rescinded documents will be replaced by interim guidance that outlines expectations for campuses. 

"This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly," said Secretary DeVos in a statement. "Schools must continue to confront these horrific crimes and behaviors head-on. 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 announcement followed remarks by DeVos earlier this month, in which she announced that the Department of Education would engage in a public comment period to address replacing the previous approach. Particularly problematic, DeVos and other critics have argued, was the 2011 Dear Colleague Letter, which, in addition to providing guidelines for the investigative process, threatened to pull federal funding from schools that did not take sufficient steps to address sexual violence on campus.

While the 2011 guidance was applauded as a much-needed step by survivors of sexual assault and their advocates, others criticized the low standard of proof recommended under the guidelines and posited that pressure from the federal government had pushed some schools to go too far in their attempts to crack down on sexual misconduct.

Under the interim guidance, schools will be able to choose whether to apply the "preponderance of the evidence" standard mandated by the Dear Colleague Letter, which requires investigators to be just over 50 percent sure that the accused is guilty. Now, schools will also have the option to apply a "clear and convincing evidence" standard, under which investigators must feel it is "highly probable or reasonably certain" that sexual violence occurred. 

The new directive also allows schools to choose whether they will allow appeals from only the responding party, or both parties involved. If schools choose the former, that would be a change from previous guidelines, which allowed complainants to also appeal not-guilty verdicts. 

The announcement and interim guidance have sparked a heated response from survivors and advocates, who say the new guidelines lessen protections for survivors and create unnecessary confusion around the investigative process. 

"It will discourage students from reporting assaults, create uncertainty for schools on how to follow the law, and make campuses less safe," said Fatima Goss Graves, president and chief executive officer of the National Women’s Law Center, in a statement. "This misguided directive is a huge step back to a time when sexual assault was a secret that was swept under the rug." 

Going forward, advocates say, they intend to hold schools to the same standards that the rescinded guidance did. 

"Title IX is the law and schools’ responsibility to respond to sexual violence is unchanged," said advocacy group Know Your IX in a statement. "Even though, Betsy DeVos and the Department of Education have turned their back on survivors, we will not let universities backslide on their obligation to provide for an equitable and safe learning environment."

Critics of the Obama-era guidelines have welcomed the development as an opportunity to rethink a system that they say denied due process to the accused and limited free speech on campuses. 

"When the government sprang its 2011 letter on colleges and students without warning, it made it impossible for campuses to serve the needs of victims while also respecting the rights of the accused," said Robert Shibley, executive director for the Foundation for Individual Rights in Education, in a statement. "With the end of this destructive policy, we finally have the opportunity to get it right."

Changes in federal guidelines may not necessarily translate into change in all campus policies, however. States including California and New York have in recent years introduced laws "that to some extent mimic and exceed Obama-era requirements," Peter Lake, a professor of law at Stetson University in Tampa, told the Monitor earlier this month. Others have also pointed out that some of the Obama-era guidelines are already part of the law

In its own statement, the Association of Title IX Administrators (ATIXA) cautioned schools to move slowly and fully understand what the changes mean. "There is only so much [the Education Department's Office of Civil Rights] can change with the rescission of guidance, when the underlying fundamentals are unchanged," wrote Brett A. Sokolow, a lawyer and the group's executive director. He added that, "Any school that de-prioritizes Title IX may quickly find itself on the wrong side of a federal judge, campus activists, or both – but certainly on the wrong side of history. This isn’t a hard-reset to the pre-2011 Title IX era, and should not be viewed or treated that way." 

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