1.  Title IX changes include the removal of the preponderance of evidence standard requirement

Schools may now decide whether to use the preponderance of evidence standard or the clear and convincing standard when adjudicating sexual assault cases as part of several Title IX changes announced on September 22, 2017.

The sweeping changes are part of multiple announcements made by the Department of Education September 22, some of the first official guidance issued under Education Secretary Betsy DeVos.

In a press release, the department announced new interim Q&A guidance for schools and the withdrawal of both the 2011 Dear Colleague Letter on Sexual Violence and the 2014 Questions and Answers on Title IX Sexual Violence.

“Schools must continue to confront these horrific crimes and behaviors head-on,” DeVos said. “There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”

The department faulted the 2011 Dear Colleague Letter, one of the most impactful pieces of Title IX guidance issued, for not meeting notice and comment requirements, stating that it “created a system that lacked basic elements of due process and failed to ensure fundamental fairness.”

Other notable changes, along with excerpts from the department’s Q&A, are listed below.

2.  Merging of Title IX and Clery

“When addressing allegations of dating violence, domestic violence, sexual assault, or stalking, institutions are subject to the Clery Act regulations as well as Title IX.”

3. Equity in Interim Measures, Investigations for Accused and Accusers

“In fairly assessing the need for a party to receive interim measures, a school may not rely on fixed rules or operating assumptions that favor one party over another, nor may a school make such measures available only to one party.”

The Q&A goes on to cover Title IX investigations:

“Any rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms.”

4. Schools May Choose Who Can Appeal

“If a school chooses to allow appeals from its decisions regarding responsibility and/or disciplinary sanctions, the school may choose to allow appeal solely by the responding party; or by both parties, in which case any appeal procedures must be equally available to both parties.”

5. Removing The Promptness Requirement for Sexual Assault Investigations

“There is no fixed time frame under which a school must complete a Title IX investigation. OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.”