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By: William H. Buechner, Jr.
Secretary of Education Secretary Betsy DeVos announced last week that the Department of Education will propose significant revisions to the Obama’s administration’s guidance concerning the Title IX obligations of schools that receive federal funding in responding to allegations of sexual assault on campus. The Obama administration’s guidance was issued by the DOE’s Office of Civil Rights in the form of an extensive letter sent to college administrators in 2011 and referred to as the “Dear Colleague” letter. The “Dear Colleague” letter (and other guidance that followed) sets forth procedures that schools should follow in response to allegations of sexual assault on campus in order to be deemed in compliance with Title IX.
The “Dear Colleague” letter has generated considerable controversy since its inception for various reasons. For example, the authoritative weight of the “Dear Colleague” letter has been questioned because it is not a regulation and did not go through a notice and comment process. While the DOE during the Obama administration acknowledged in response to pointed questions from U.S. Senators that the “Dear Colleague” letter does not have the authoritative weight of a regulation and is only a guidance, some institutions complained that the OCR applied the provisions of the “Dear Colleague” letter as legal requirements, and the OCR publicly threatened to withdraw federal funds from institutions that did not comply with the procedures set forth in the “Dear Colleague” letter.
The most controversial provision in the “Dear Colleague” letter is its conclusion that the alleged victim may establish that a sexual assault occurred by only a preponderance of the evidence (just over a 50% probability). Prior to the “Dear Colleague” letter, many institutions required clear and convincing evidence to prove that a sexual assault occurred. The “Dear Colleague” letter asserts that a preponderance of the evidence standard is more appropriate because this is the standard of proof in most civil cases. Supporters assert that a more stringent standard of proof would provide too much protection to the perpetrators of sexual violence on campus.
On the other hand, critics contend that the preponderance of the evidence standard is too low given the high stakes involved — a student who is found guilty of sexual assault in a school disciplinary proceeding typically is expelled from the institution, which can cause enormous damage to that student’s career prospects. Critics also point out that the alleged perpetrator often has a very limited right to cross-examine the alleged victim in these proceedings and sometimes does not receive written notice of the specific allegations. For these and other reasons, a growing number of Title IX lawsuits have been filed in recent years by alleged perpetrators who contend that they were wrongfully found guilty of sexual assault and were denied due process by school administrators.
Secretary DeVos indicated that the DOE soon would initiate a notice and comment process to develop new guidance to address the adjudication of sexual assault allegations on campus. She did not elaborate on the specific guidelines being considered, but it is very likely that the DOE intends at a bare minimum to alter the standard of proof to be applied by schools when adjudicating sexual assault allegations on campus. We will monitor this process and provide updates as to the changes being contemplated by the DOE.
If you have any questions or would like more information, please contact William Buechner at [email protected].