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Department of Education seeks delay in Title IX case while it reviews guidance

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The U.S. Department of Education has asked for a 90-day hold to be put on a lawsuit that challenges guidance issued in 2011 by the Obama administration regarding policies on campus sexual assault investigations.

A lawsuit filed by a University of Virginia law school graduate accused of sexual assault is ongoing, the Chronicle of Higher Education reports. The department on Friday filed a motion (PDF) to hold the case in abeyance. Oklahoma Wesleyan University is also a plaintiff in the lawsuit.

The guidance in question is if the Office of Civil Rights’ 2011 “Dear Colleague” letter, which stated that sexual violence should be included among the offenses banned by Title IX of the Education Amendments of 1972. The guidance directed schools to use the preponderance of the evidence standard when making determinations about sexual harassment.

But critics of the guidance have said that the standard of clear and convincing evidence would be the more appropriate evidentiary standard, considering the possible severe consequences of a campus discipline finding.

“On January 20, 2017, Donald J. Trump became President of the United States. In light of the change in administrations, the Department of Education’s Office for Civil Rights is reviewing the 2011 Dear Colleague Letter challenged in this case. As a step in this ongoing review, Secretary of Education [Betsy] DeVos convened stakeholders, including students, families, and educational institutions, on July 13 to discuss the Department’s Title IX policies,” states the court filing from last Thursday. “Defendants, including the Secretary, have been engaged in ongoing discussions with students, parents, educational institutions, advocacy groups, and experts to learn about their experiences and to hear their views of how the Department can best fulfill its obligations under Title IX.”

In June, the ABA Criminal Justice Section’s Task Force on College Due Process Rights and Victim Protection recommended that all parties in a campus sexual assault investigation receive written notice before a formal investigation begins, be allowed to participate in the investigation and have the right to respond to the final report. Also, the report (PDF) states that both parties should have a right to appeal.