Education Secretary Betsy DeVos has said a new direction is needed to balance the rights of the victims and the accused. | Mario Tama/Getty Images Obama-era school sexual assault policy rescinded

Education Secretary Betsy DeVos announced Friday she was rescinding Obama-era guidance on school sexual assault, effective immediately. The agency issued a question-and-answer document to help schools navigate the highly contentious issue while a formal review is conducted.

The document allows schools to use a higher standard of proof in campus disciplinary proceedings related to sexual violence, altering one of the most hotly debated elements of the Obama-era guidance. Instead, schools can opt to use a higher standard of proof — known as “clear and convincing evidence.”


Attorneys for the accused have said too often that the Obama-mandated standard, known as “preponderance of evidence," or “more likely than not,” undermined the due process rights of the accused. That standard is lower than the "beyond a reasonable doubt" standard common in criminal trials.

In another new element, the new instructions will allow campuses to provide mediation in sexual assault cases if both sides agree to it — an option not permitted under the Obama-era guidance which pushed school leaders to combat sexual harassment, including sexual violence.

Friday's announcement was unlikely to propel schools to immediately change their policies. Many college and university officials have said they would wait until rule-making is complete.

But Cynthia Garrett, co-president of Families Advocating for Campus Equality, said the new guidelines do “alleviate the pressure on schools to feel as though they need to stack the deck against those that are accused.”

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“Probably the biggest thing this does is take the pressure off schools to comply with the 2011 Dear Colleague letter,” she said, referring to the Obama-era guidance which applied to all colleges, universities and K-12 schools.

DeVos’ guidelines also provide students accused of sexual assault with greater access to evidence and stress that the identity of their accusers and alleged conduct must be revealed before they’re questioned, Garrett said.

“Often these students are brought in to be interrogated before they’re accused of anything,” she said.

But Fatima Goss Graves, president and CEO of the National Women’s Law Center, said the effects of the change could be “devastating” to victims of sexual assault.

“It will discourage students from reporting assaults, create uncertainty for schools on how to follow the law and make campuses less safe,” Graves said.

One footnote, she said, is particularly confusing. That footnote says, “The standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases.”

Goss Graves said that seems to suggest the standard of evidence used for evaluating cases of sexual misconduct should be the same as the evidence used to evaluate cases of cheating or plagiarism. Colleges and universities should have different priorities when it comes to evaluating cases of sexual assault, she said.

Alyssa Peterson, policy and advocacy coordinator for the victim’s advocacy organization Know Your IX, said the change on mediation is perhaps “the most frightening part of this for me.”

“It’s very intimidating for a victim to participate in a mediation session with their rapist,” she said, and schools might not be the best ones to facilitate such a session.

Sen. Patty Murray of Washington, ranking Democrat on the Senate HELP Committee, accused the department of “continuing a pattern of undermining survivors’ rights.”

Earlier this month, DeVos had said she would scrap the 2011 Obama-era directive and develop a replacement through a rulemaking process that she said would do a better job of balancing the rights of victims and the accused.

"As I said earlier this month, the era of rule by letter is over. The Department of Education will follow the proper legal procedures to craft a new Title IX regulation that better serves students and schools," DeVos said in a statement Friday.

The Q&A issued Friday said that schools that voluntarily entered into resolution agreements with the department's Office for Civil Rights based on the 2011 "Dear Colleague" letter must adhere to those agreements. "Existing resolution agreements remain binding upon the schools that voluntarily entered into them," the document says. "Such agreements are fact-specific and do not bind other schools."

Senior department officials said investigations of schools pertaining to violations spelled out in the rescinded Obama-era guidance would be reviewed on a case-by-case basis, but that the department would continue to open new investigations as the review process moves forward.

The officials weren’t specific on the time frame for action, saying only that the department’s proposed rule could take several months.

During the rulemaking process, the department said it would continue to rely on 2001 Revised Sexual Harassment Guidance, and a "Dear Colleague" letter from 2006.

Robert Shibley, executive director of the Foundation for Individual Rights in Education, a civil rights group that brought a court challenge to the Obama 2011 guidance, said “the fight is certainly not over, but the Dear Colleague letter is certainly over, and it’s a really good day for fundamental fairness on campus.”

He added that there’s still a lot of work to do to come up with a system that balances the rights of victims and the accused.

Shibley said the guidelines released by the Trump administration shouldn’t be confusing for colleges and universities. If anything, the Obama administration’s 19-page directive on campus sexual assault and the subsequent 46-page question-and-answer document clarifying that directive were significantly more confusing, he said.

DeVos’ guidelines also note that resolution agreements reached by schools under the Obama document don’t pertain to other schools. That’s important, Shibley said, because the Obama administration tried to push an overly broad definition of campus sexual assault through resolution agreements.