Department of Education Makes Important Changes to Title IX Enforcement Policy Regarding Sexual Assault Allegations on College Campuses
As recently, reported in the New York Times, the federal Department of Education (DOE) has rolled back certain enforcement policies advanced by the Obama Administration that affect the investigation and adjudication of sexual assault allegations by American colleges and universities. Most importantly, the DOE has rescinded the requirement that colleges and universities apply a "preponderance of the evidence" standard in order to qualify for federal education funding. Colleges and universities are now free to adopt a higher standard of proof such as "clear and convincing evidence". The DOE has also eliminated a requirement that investigations be completed within 60 days and a ban on mediation upon agreement of the parties. Finally, the DOE added a requirement that the accused student must be informed in writing of the allegation before being asked to respond.
While all of these changes might seem obvious and non-controversial to those familiar with basic notions of due process in the American criminal justice system, they are important steps forward in the evolution of disciplinary procedures designed to adjudicate sexual assault allegations fairly and reliably on college campuses.
But in the current political climate, where any changes are sure to generate much heat, it is important to shed light as well. While these changes will make the adjudication process more reliable where adopted, it is important to note that, at least as of now, they are not mandatory. Moreover, there is no reason to believe that these changes will reduce the number of sexual assault investigations or the potential consequences for the accused, which can include, suspension and even expulsion. Therefore, it continues to be crucial for those accused of sexual misconduct in the university setting to retain legal counsel as soon as possible in order to respond to allegations. The good news is that the DOE policy changes, at least where adopted, will make it easier for counsel to achieve a fair outcome.