The 5 Ways DeVos’s Reported New Title IX Rules Would Change Sex Assault Investigations

The Education Department and Republicans in Congress have repealed various significant policies enacted during the Obama administration. These policies included protections for transgender students and strict rules on school accountability under the Every Student Succeeds Act.

Now, Education Secretary Betsy DeVos plans to make significant changes to how colleges and K-12 schools respond to allegations of sexual assault and harassment under Title IX, which prohibits discrimination based on sex in education. The proposed regulations aim to address criticisms of the 2011 Obama administration guidance, which some argue didn’t follow the proper rulemaking processes. Critics also claim that the previous guidance unfairly favored victims by encouraging schools to enhance investigations and protections, potentially tipping the scale against the accused. Women’s groups fear that undoing these protections would lead to a time when sexual assaults were ignored.

The New York Times reported on these proposed regulations late Wednesday afternoon, almost a year after DeVos first announced her intentions to modify the standards and improve protections for alleged perpetrators. Last September, DeVos claimed that the existing system established by the prior administration failed many students and resulted in a lack of due process.

Sen. Patty Murray, the leading Democrat on the Health, Education, Labor, and Pensions Committee, expressed dismay over DeVos’s rule, stating that it would make it harder for assault victims to seek justice. She urged DeVos to reconsider and take meaningful steps to address the campus sexual assault crisis.

The Education Department declined to comment on the proposed regulations to The New York Times, as officials are still deliberating and view the information provided by the paper as premature and speculative.

An interim policy released in September brought about a significant change included in the new proposal: giving schools the authority to determine the level of evidence required to determine if an assault occurred. The Obama-era regulations that have since been rescinded mandated the use of a less stringent "preponderance of the evidence" standard, as opposed to the more rigorous "clear and convincing" standard.

Experts have expressed concerns about changing evidentiary standards, especially at the start of the school year when most assaults take place. This uncertainty could harm survivors and potentially lead to lawsuits from perpetrators who were convicted under different standards.

Other proposed changes highlighted by The New York Times include the requirement for formal complaints to be investigated, limiting investigations to events that occurred on campus, permitting victims and perpetrators to request information and cross-examine each other, and considering mistreatment of the accused as sex discrimination.

The proposal will undergo a formal notice and comment period before the department releases a final version. Women’s groups have already filed a lawsuit seeking to block the department’s interim policy.

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