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Department of Education Announces Title IX Changes

Stop sexual assault sign

The US Secretary of Education, Betsy DeVos, has announced that she is rescinding parts of the Obama administration’s Title IX guidance on how schools receiving federal funds should respond to accusations of sexual misconduct. Among other changes, DeVos announced changes to the standard of evidence used in sexual assault claims. Read on to learn more about the changes, and speak with an informed Illinois education law attorney with any additional questions.

Obama administration’s “Dear Colleague” letter rescinded

Title IX is the federal law that prohibits sex or gender discrimination on college campuses, and it has also been interpreted to protect students against sexual harassment and assault. In 2011, the Obama administration issued a “Dear Colleague” letter, offering guidance to universities who receive federal funding on how claims of sexual assault should be prosecuted by school administrators. Among other changes, the letter stated that sexual assault should be considered a form of sexual discrimination, that claims of assault should be processed within 60 days, and, most notably, that schools should use a “preponderance of the evidence” standard when considering claims of sexual assault. In other words, an individual could be considered guilty of assault if the evidence showed that it was more likely than not that the accused was guilty. The evidentiary standard used by criminal courts in similar cases is that prosecutors must prove beyond a reasonable doubt that the accused is guilty. Schools stood to lose their federal funding if they chose not to comply with these guidelines.

New guidelines suggest use of a higher threshold to prove claims

On September 22, 2017, DeVos rescinded the “Dear Colleague” letter and announced interim guidelines on how college campuses can address sexual assault claims. The most substantial change she announced was that schools may use a “clear and convincing” standard of evidence when analyzing such claims. Additionally, she announced that schools are encouraged to use “informal resolution” where appropriate, that the 60-day limit on investigations no longer applied, and that schools could offer an appeals process either to both the accuser and accused, or only to the accused (the “Dear Colleague” letter required that both parties have a right to appeal). DeVos claimed that the changes will offer greater protection to those accused of assault.

Universities are not required to abandon the previous administration’s guidelines on handling assault claims in favor of the interim guidelines announced by DeVos. Many universities have, in fact, announced their intention to continue using the lower standard of proof and higher protections for accusers instituted by the “Dear Colleague” letter. For example, Northern Illinois University has announced that it will continue to use the “preponderance of the evidence” standard when addressing assault claims, and other Illinois colleges are still in the process of reviewing the revised standards and determining if and how those changes will affect their policies.

For assistance with a legal issue related to Title IX, the Illinois Human Rights Act, or other questions surrounding Illinois education law, contact the seasoned and knowledgeable Chicago area education law attorneys at MacDonald, Lee & Senechalle for a consultation, in Hoffman Estates at 847-310-0025, or in Des Plaines at 847-298-5030.

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