Education Dept. Replaces Obama-Era Title IX Directives With New Interim Guidance

The U.S. Department of Education has rescinded two pieces of Obama-era guidance that told colleges how they should handle issues related to campus sexual assault, and has replaced them with new interim guidance, the department announced on Friday.

In a speech this month, the education secretary, Betsy DeVos, announced that the department would begin a process for replacing the Obama-era guidance. The department’s action on Friday withdrew two key documents: a 2011 “Dear Colleague” letter, which kicked off a new era of enforcement under the gender-equity law known as Title IX, and a 2014 questions-and-answers document, which offered colleges additional guidance on how they should respond to reported sexual violence.

The 2011 letter dictated that colleges use a “preponderance of the evidence” standard, or a more-likely-than-not standard, in resolving campus sexual-assault cases, which is a lower standard than what is used in criminal cases. The department’s interim guidance gives colleges the discretion to use a “clear and convincing” standard of evidence, which is higher than the preponderance standard, in such cases. Many colleges had already abandoned the “clear and convincing” standard when the 2011 letter was issued.

The new guidance also states that colleges may facilitate informal resolutions, including mediation, if all parties agree to participate in that process. The 2011 letter had stated that mediation was not appropriate, “even on a voluntary basis,” in cases involving alleged sexual assault.