In a new “Dear Colleague” letter issued this morning, the U.S. Department of Education (ED) announced that it will rescind a 2011 Dear Colleague letter on campus sexual violence along with a 2014 Questions and Answers document on the same topic.
ED points to the standard of proof required by the 2011 letter – known as the preponderance-of-the-evidence standards – as problematic, saying that it was a lower standard than what had been previously used and “led to the deprivation of rights for many students.” ED also says that 2011 letter, which purported to interpret Title IX of the Education Amendments of 1972, imposed new mandates and required judicial systems without providing sufficient due process protections. The new letter also points to concerns about the 2011 letter from some legal commentators, quoting articles which say that the former requirements were “overwhelmingly stacked against the accused.”
ED also raises questions about the process by which the 2011 guidance was developed, saying that it “imposed… regulatory burdens without affording notice and the opportunity for public comments.” Instead, ED will now withdraw these documents and develop new guidance that “responds to the concerns of stakeholders and aligns with the purpose of Title IX.”
Along with the Dear Colleague letter, ED has issued a new “Q&A on Campus Sexual Misconduct.” This document notes that schools have an obligation to investigate and respond to all allegations of sexual misconduct, whether or not a student files a complaint. It says that findings of fact may be reached by applying “either a preponderance of the evidence standard or a clear and convincing evidence standard” and that processes and rights made available to one party – for example, the right to have an attorney present or the right to submit questions for witnesses – must be available to both parties. The document also discusses the obligations of postsecondary institutions under the Clery Act and notes that existing resolution agreements created under the 2011 Dear Colleague are still in force.
ED says that schools may continue to rely on the 2001 “Revised Sexual Harassment Guidance” and a 2006 Dear Colleague letter on sexual harassment.