Government

What You Need to Know About the New Guidance on Title IX

September 22, 2017

Chronicle photo by Julia Schmalz

Updated (9/22/2017, 4:46 p.m.) with more detail on several of the answers.

For months, Title IX officers and others who have a stake in how colleges respond to sexual misconduct have anticipated that the Obama-era guidelines for compliance with the federal gender-equity law would be rolled back, but it was unclear how, specifically, the rules would change.

The picture became clearer on Friday, when the U.S. Department of Education’s Office for Civil Rights released new directions, in the form of an interim question-and-answer document, that set out the department’s expectations for colleges. Formal rules will be crafted after the department hears from various stakeholders and the public.

At the same time, the department withdrew two documents released by Office for Civil Rights during the Obama administration: a 2011 “Dear Colleague” letter on responding to sexual violence, and a question-and-answer document issued three years later.

Following are a few of the areas where changes announced on Friday are already stirring controversy:

There’s been a lot of talk about the standard of proof needed to find someone responsible for sexual assault. How would that change under the new guidance?

The 2011 letter required colleges to adopt a “preponderance of the evidence” standard in administering student discipline, which meant that it was more likely than not that the misconduct had occurred. Some refer to that as a 51-percent standard.

Under the new guidance, colleges have the discretion to apply either that minimal standard or the medium “clear and convincing evidence” threshold. Both are less rigorous than the “beyond a reasonable doubt” standard typically needed for criminal convictions.

Advocates for sexual-assault victims worry that making it harder for people to prove their cases could discourage them from reporting, while those who feel too many students are being expelled based on flimsy evidence welcome the more-rigorous standard of proof.

What about mediation as an alternative to a full investigation and adjudication?

The Obama-era guidance said that mediation was not appropriate, “even on a voluntary basis,” in cases involving alleged sexual assault. In cases involving sexual harassment, the Office for Civil Rights said that it was not appropriate for a student who complains of harassment to be required to work out the problem directly with the alleged harasser, at least without a trained counselor or mediator.

Under the new guidance, colleges are allowed to facilitate an informal resolution process, such as mediation, as long as all parties agree to it after getting a full rundown of the allegations and their options for formal resolution. A college would have to determine first that such a process was appropriate for a particular Title IX complaint.

Who would have the right to appeal a finding in a sexual-assault case?

Under the earlier guidance, colleges were encouraged to have an appeals process and to make it available to both parties. Under the new guidance, colleges don’t have to allow appeals; if they do, they can decide whether to permit both parties to appeal, or only the accused. Critics of allowing an accuser to appeal a not-guilty finding argue that accused students end up being retried even after they’ve been cleared of wrongdoing.

How would the changes affect the amount of time colleges have to complete an investigation?

Instead of having 60 days, as colleges had under the Obama-era guidance, there would be “no fixed time frame under which a school must complete a Title IX investigation.” The Office for Civil Rights “will evaluate a school’s good-faith effort to conduct a fair, impartial investigation in a timely manner.”

Those who favor a faster process say that dragging it out over months or even years is unnecessarily stressful for the parties involved. Others counter that the 60-day time frame created too much pressure to resolve complaints quickly, without affording the parties enough time to present their cases.

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.