Department of Ed revokes ‘Dear Colleague’ guidelines for campus sex assault investigations

Education Law


Education Secretary Betsy DeVos/U.S. Department of Education.

Corrected: The U.S. Department of Education on Friday announced that it will engage in rulemaking regarding schools’ Title IX responsibilities involving campus sexual misconduct complaints, and in a question-and-answer document said that there’s no longer a requirement that institutions use a preponderance of evidence standard when determining whether an assault took place.

Now, schools can use a clear and convincing evidence standard when making determinations, the Los Angeles Times reports. The document (PDF) also notes that the previous standard of a 60-day time frame for sexual assault investigations has been rescinded. “There is no fixed time frame under which a school must complete a Title IX investigation.”

Additionally, the accused will have greater access to evidence, Politico reports, and accusers’ identities must be revealed before questioning.

Those in favor of the change maintain that the 2011 “Dear Colleague” guidance from the department’s Office for Civil Rights deprived the accused of due process. The department document issued Friday states that while schools “must take steps to understand what occurred and respond appropriately,” they need to do that in “a manner that respects the legal rights of students and faculty, including those court precedents interpreting the concept of free speech.”

“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly. 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,” said U.S. Department of Education Secretary Betsy DeVos, the Detroit Free Press reports.

Earlier this month, DeVos indicated that the department’s 2011 guidance would be nixed.

“Washington has burdened schools with increasingly elaborate and confusing guidelines that even lawyers find difficult to understand and navigate. Schools have been compelled by Washington to enforce ambiguous and incredibly broad definitions of assault and harassment,” she said in a speech at George Mason University.

In June, the ABA’s Criminal Justice Section’s Task Force on College Due Process Rights and Victim Protection issued a report (PDF) advocating that both parties in campus sexual assault investigations should receive written notice before the investigation begins, and they should both be allowed to review the school’s evidence, respond to the final report, and have the right to appeal.

Wendy Murphy, a Massachusetts lawyer who represents women who claim to have been sexually assaulted on campus, objects to the task force recommendation, and in 2016 started a petition on the Parents United Against Sexual Harassment website, urging the ABA to rescind its position.

Some of the positions have been changed since then, according to Murphy, but she still objects to the report. She plans to file a lawsuit against DeVos’ reported policy change, either in state or federal court.

“I’m not opposed to due process. I’m opposed to people talking about due process as if it only applies when a man beats the hell out of or rapes a woman,” she told the ABA Journal. “You can’t treat gender differently than race or national origin. [DeVos] has declared today that schools have permission to devalue the weight of an entire class of people.”

The task force recommendation findings were unanimous, and not designed to benefit one side over the other, Andrew S. Boutros, a Seyfarth Shaw partner who chairs the group, told the ABA Journal. He adds that individuals involved in the process included judges, prosecutors, and victims’ rights advocates.

“Everyone is incredibly proud of their work. It’s a give-and-take process, that requires people to be flexible and compromise,” he said. The report, he adds, is “intended to be fair and balanced to both parties, and find a middle ground that can … provide fundamental due process rights—which are the hallmark and touchstones of the rule of law—for the victim and the accused.”

Corrected at 9:43 p.m. to remove mistaken reference to evidence standard in criminal cases.

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