In September of 2017 Secretary of Education Besty DeVos formally announced the withdrawal of the 2014 “Dear Colleague Letter” and replaced it with new “Interim Guidance” designed to bridge the gap until new rules are implemented. Many students who are caught up in a university Title IX Hearing during this interim period have questions about how this decision affects them. Let’s talk about what this Interim Guidance is, and what it is not:
What the Interim Guidance is – The withdrawal of the Dear Colleague Letter and its replacement with the Interim Guidance means that schools are no longer under an obligation to use a “preponderance of the evidence” standard in adjudicating Title IX Hearings. The main alternative to this standard is the higher “clear and convincing evidence” standard. The evidentiary standard used at Title IX Hearing is important, because it tells the hearing officer(s) how sure they must be that the allegations are true before finding an accused student responsible for something like sexual assault. The Interim Guidance also cautions schools to provide equal treatment to the accuser and the accused: specifically, the Interim Guidance mentions providing meaningful and equal access to the evidence used in the hearing, and providing equal levels of accommodations to students during the investigative and hearing process.
What the Interim Guidance is not – The Interim Guidance is not an order for schools to change their ways. It essentially allows schools the freedom not to follow the “Dear Colleague Letter” rules (which threatened the funding of schools that did not comply), and gives schools more breathing room to adopt more accused-friendly-and many would argue more universally fair-rules. Many students are surprised that the DeVos decision did not immediately require schools to change their rules; schools many indeed eventually be forced to change once new formal rules are implemented, but in the meantime the Interim Guidance merely gives schools added breathing room, without any substantive accused-friendly mandates.
The new rules from the Department of Education for Title IX Hearings are currently in the comment process, meaning that we do not yet know what the new rules will be. In the meantime, schools will likely maintain the status quo. For any questions regarding a university Title IX Hearing, call an experienced attorney today as the impact that a Title IX Hearing can have on your future can be very substantial.