Education Department Will Revamp Guidelines for Campus Sex Misconduct Probes

Secretary of Education Betsy DeVos made it official on September 7: her agency plans to change guidelines the Obama administration had set in 2011 for how schools should investigate and handle complaints of sexual misconduct.

In a speech delivered at George Mason University, the head of the U.S. Department of Education (DOE) said the Obama administration’s approach “wasn’t working” and had “failed too many students.” She also committed the agency to taking extensive public comment before coming up with a replacement policy (a step not taken before the guidelines were originally issued).

Title IX of the 1972 Amendment to the Education Act forbids various types of discrimination, including sex-based bias by schools and colleges receiving federal funds, including grants and federally-guaranteed scholarships.

The 2011 guidelines came in a “Dear Colleague” directive sent to schools by DOE civil rights enforcers. It reminded schools of their duty to investigate claims of sexual misconduct or harassment and to act if those offenses were found, pointedly noting schools which fail to do so can be denied all federal funds.

Those guidelines also set several controversial procedures that DOE said schools must follow or risk having federal funds cut off. For instance, the guidelines DeVos plans to revoke or revise set the standard of evidence for school disciplinary hearings at a “preponderance of the evidence” – a much lower standard than the “beyond a reasonable doubt” standard used by criminal courts. Also unlike criminal court proceedings, in campus hearings under Title IX guidelines, accusers have the right to appeal decisions in favor of an accused.

Other parts of the 2011 guidelines have been criticized as unworkably vague or biased against those accused of misconduct, including how broadly to define sexual misconduct. The DOE official who in the Trump administration will be most directly responsible for supervising Title IX enforcement made headlines a few months back by estimating 90% of sexual misconduct complaints colleges receive do not involve clear violence, but instead claim students had engaged in sexual activity while drunk, or had retroactively come to regret earlier, apparently consensual activity.

Some law professors and civil liberties advocates have also attacked the 2011 guidelines; more than two dozen Harvard law faculty members protested when that university attempted to impose the DOE guideline procedures on Harvard Law School (which eventually adopted somewhat different procedures).

A few courts have also found school disciplinary hearings to have violated the constitutional due-process rights of those accused of misconduct, and the number of legal challenges being brought by those accused in school hearings is rising. While Obama DOE officials and their backers have defended the current guidelines as needed to protect victims of sexual violence or harassment, DeVos assailed the Obama administration for having “weaponized” DOE civil rights enforcers “to work against schools and against students,” rather than working with schools to protect the interests of all students.

A policy change is not surprising. In August, when faced with a lawsuit in which several students and universities were challenging the DOE guidelines, the agency had asked for a 90-day delay in filing a reply, to allow time to consider how it might want to rework the guidelines.

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