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Education Department makes new changes to Title IX

On Friday, Sept. 22, the U.S. Education Department announced that it was making changes to how universities and colleges handle Title IX.
The Education Department, headed by Betsy DeVos, released a new “Dear Colleague” letter and the follow-up Q&A. These documents provide guidance on how to abide by federal regulations like Title IX. This 2017 letter rescinded the 2011 “Dear Colleague” letter and the subsequent 2014 FAQ which was put in place under the Obama administration.
A number of changes occur under the new letter, but some of these changes are left up to schools Title IX Coordinator Adam McGowan said.
“To some extent, they left a lot of leeway for everybody,” McGowan said.
For instance, the new notices do away with the mandate that all universities and colleges use the preponderance of evidence standard for investigating Title IX cases. Instead, colleges and universities can now use either the preponderance of evidence standard or the higher standard of clear and convincing.
“The schools still then have the option. You will see some schools that make that change, and you’ll see other schools that won’t,” McGowan said. “We [at Missouri Western] haven’t had a chance to discuss this here yet, but a lot of advice we’re seeing is just wait and see, because of the notice on comment period, which could take a year, and we might have completely new guidelines by then.”
Another change allowed by the new notices is the use of mediation for sexual assault cases, if seen as appropriate by the university.
“Prior, we had said mediation is inappropriate for cases of sexual assault. Like, we don’t want to put these two people back in a room together to work it out. This [notice] allows for that [remediation] if the universities deem it appropriate,” McGowan said.
Other changes simply remove aspects of Obama-era guidance. The new Q&A, for instance, removes the recommended 60-day timeline for investigations. The new guidelines now requires that schools just show a “good faith effort to conduct a fair, impartial investigation in a timely manner.”
“It was a recommended timeline to begin with, so they just took the number out and replaced it with ‘prompt,’ which I appreciate it. There are cases where it’s a complicated issue and the resources we have available and the people we rely on for investigation scheduling, it can just take that long. It’s not something that we try to do but, it happens,” McGowan said.
Parts of the 2017 notices also provide clarifications. While restating that campuses have an obligation to investigate Title IX harassment cases, the new recommendations also reiterates that the university does not have a “duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity” of those involved in the incident.
Notification of parties involved is also handled in better detail.
“They’ve done a better job, I think, in spelling out what needs to go in there, but we were already required to give notice. I’d say for some of the schools that got in trouble, notice was an issue if you look at some of the court cases making their way through,” McGowan said.
Overall, McGowan said he wasn’t surprised by the changes announced on Friday.
“It’s stuff they’ve been hinting at for a while, so I’m surprised it didn’t happen right away when DeVos was appointed. I think it was done with the eyes of there being too many problems of improper process or not following process as far as grievances go across the country,” McGowan said.
An open comment period on Title IX changes is ongoing and additional changes could be made in the future.

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