U.S. Dept. Of Education Introduces New Regulation Proposal For Sexual Misconduct

By Megan Rowe
The Spokesman-Review, Spokane, Wash.

WWR Article Summary (tl;dr) One of the changes to due process would replace the Obama administration’s evidence standard in cases of reported sexual assault, from requiring a “preponderance of evidence” — meaning it is more likely than not that sexual harassment or violence occurred — to requiring “clear and convincing evidence,” meaning it is highly probable or reasonably certain that such an incident occurred.

The Spokesman-Review, Spokane, Wash.

The way schools handle sexual misconduct allegations could change significantly if a Title IX rule proposal, released Friday by the office of U.S. Secretary of Education Betsy DeVos, is implemented.

Title IX prohibits discrimination on the basis of sex within the education system. The new rule would add protections for students accused of assault, harassment or rape, and reduce liability faced by schools.

“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” DeVos said in a news release. “That starts with having clear policies and fair processes that every student can rely on.”

The 149-page draft rule did not come as a surprise to Gonzaga University Title IX officer Stephanie Whaley, due in part to the New York Times’ leak of the proposal in late August. But Whaley said the Title IX guidelines — most recently adjusted in a “Dear Colleague” letter in 2017 — had been in conversation much longer than that.

“I think we were all expecting more structure around expectations related to due process and more narrowly defined definitions than what had been out there before,” she said.

One of the changes to due process would replace the Obama administration’s evidence standard in cases of reported sexual assault, from requiring a “preponderance of evidence” — meaning it is more likely than not that sexual harassment or violence occurred — to requiring “clear and convincing evidence,” meaning it is highly probable or reasonably certain that such an incident occurred. When the preponderance standard was established in a “Dear Colleague” letter in early April 2011, Gonzaga adopted the guideline.

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