WASHINGTON--Education Secretary Betsy DeVos on Friday scrapped Obama-era guidance intended to better protect victims of sexual misconduct on college campuses, replacing it with an interim rule she says is meant to strike a more appropriate balance between those accused of sexual misdeeds and their accusers.

The Department of Education's decision came less than two weeks after DeVos announced that she would begin a new rule-making procedure to determine how best to guide colleges and universities in handing sexual misconduct claims under Title IX, a federal law which prohibits discrimination in education.

In 2011, then-President Barack Obama's administration issued a guidance to colleges and universities reminding them of their responsibilities to investigate and respond to allegations of sexual misconduct under Title IX. While victims' rights groups say it greatly helped victims come forward, critics have said that it created a system in which colleges and universities often punished those accused without legal due process.

As it rescinded the 2011 guidance Friday, the Department of Education put out an email criticizing both the earlier document and a 2014 question-and-answer sheet circulated to colleges on how to implement it, saying they "ignored notice and comment requirements, created a system that lacked basic elements of due process and failed to ensure fundamental fairness."

The new circulated Q&A takes a different tack: While it allows colleges and universities to decide whether to continue using a lesser "preponderance of the evidence" standard in deciding claims, it also permits them to move to a tougher "clear and convincing evidence standard" if they so choose.

It also makes clear that while schools still "must take steps to understand what occurred and to respond appropriately" in cases where sexual misconduct is alleged, they must do so in "a manner that respects the legal rights of students and faculty, including those court precedents interpreting the concept of free speech."

The Q&A tells institutions that interim measures to respond to a claim while it is being investigated, such as restricting contact between the parties, imposing leaves of absence or changing housing or class schedules, may be appropriate, but that schools may not rely on "fixed rules" in deciding what to do in such cases.

"A school may not rely on fixed rules or operating assumptions that favor one party over another, nor may a school make such measures available only to one party," the document said. "Interim measures should be individualized and appropriate based on the information gathered by the (school's) Title IX coordinator."

The policy, which presumably would be replaced by whatever final rule the Education Department settles on in the months to come, places the burden on the school to "gather sufficient evidence to reach a fair, impartial determination" and requires written notice and other legal rights to be afforded to both the accuser and the accused.

DeVos, a school choice advocate and former Michigan Republican Party official before becoming President Trump's education secretary, said the changes were needed to make sure both sides in such claims are treated fairly.

"This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly," said DeVos in a statement. "Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial."

Earlier this month, when DeVos said she would initiate a new rule-making, she described circumstances such as those in which the accused was forced out of school without being able to confront the charges against him or in which the alleged victim said no abuse had occurred but a school moved to remove a student nonetheless.

But victims' rights groups and others quickly denounced Friday's action, with Fatima Goss Graves, president and CEO of the National Women’s Law Center in Washington, D.C., saying it will have a "devastating" impact on schools and students who are the victims of sexual misconduct.

"It will discourage students from reporting assaults, create uncertainty for schools on how to follow the law, and make campuses less safe," she said. "This misguided directive is a huge step back to a time when sexual assault was a secret that was swept under the rug."

Catherine Lhamon, former assistant secretary for civil rights at the Education Department in the Obama administration and current chair of the U.S. Commission on Civil Rights, issued a statement saying, "The message here is distressingly clear: The federal government is no longer looking out for students." (Source: USA Today)

Story Date: September 23, 2017