The Department of Education released new, temporary guidelines for public schools and universities to investigate allegations of sexual assault, overruling previous guidelines issued during the Obama administration.
“In the coming months, the Department intends to engage in rulemaking on Title IX responsibilities arising from complaints of sexual misconduct. The Department will solicit comments from stakeholders and the public during the rulemaking process, a legal procedure the prior administration ignored,” read a press release from the department.
Under the Obama administration, the Department of Education released a memo in 2011, in which educators were given a new set of guidelines for investigating sexual assault complaints.
The guidelines mandated that all complaints be investigated in an effort to correct what some perceived as a system that favored the accused instead of the accuser. They also lowered the burden of proof required for students to be found guilty and threatened non-complaint schools with sanctions.
Since the Obama-era guidelines were put in place in 2011, they have been criticized for going too far. “[E]fforts to protect women from a putative epidemic of violence have led to misguided policies that infringe on the civil rights of men,” wrote Emily Yoffe for Slate Magazine in 2014.
Elizabeth Foley, a law professor at Florida International University, told the Washington Examiner in 2014:
The Department of Education under the Obama administration has adopted shockingly broad new guidelines under Title IX that not only encompass off-campus behavior — that should be no business of a college or university — but also require the use of a low ‘preponderance of the evidence’ standard for sexual assault claims.
In 2016, an unprecedented number of lawsuits were filed against universities by students who had been accused of sexual assault.
“In over 20 years of reviewing higher education law cases, I’ve never seen such a string of legal setbacks for universities, both public and private, in student conduct cases,” Gary Pavela, who edits the Law & Policy’s Report for the Association of Student Conduct Administration, told Inside Higher Ed.
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“As I said earlier this month, the era of rule by letter is over. The Department of Education will follow the proper legal procedures to craft a new Title IX regulation that better serves students and schools,” said Education Secretary Betsy DeVos upon the announcement of the new regulations.
The Trump administration has made no secret of its plans to rescind the regulations put in place under the Obama administration’s interpretation of Title IX; DeVos gave a speech on September 7 announcing the department’s intention to review the guidelines, and met with a series of activism groups—including men’s rights activists—to discuss the topic earlier this year.
Other Obama-era education guidelines that could be a target for the Department of Education in the coming weeks include a 2016 directive telling educators that Title IX’s language protecting against gender discrimination must also be applied toward transgender students.
Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance.1 This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.
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The directive came amid a fierce national debate about transgender bathroom use that began after states like North Carolina passed laws stating that transgender students must use whichever bathroom matches their sex at birth.