NAICU Washington Update

Existing Title IX Campus Sexual Assault Guidance to be Replaced

September 14, 2017

In a widely anticipated move, Secretary Betsy DeVos announced that the Department of Education plans to replace its current Title IX guidance on campus sexual assault with new regulations developed through the notice-and-comment rulemaking process. It is not yet clear how the Department plans to implement this change or when this transition will occur.

In the meantime, the current campus sexual assault guidance remains in effect. In her announcement, DeVos both condemned sexual assault and commended the Obama Administration for shedding new light on the issue. However, she was highly critical of how schools have implemented the Title IX guidance and how the Department has enforced it. Specifically, she alleged that the current guidance fails to provide sufficient due process protections for accused students, and that previous agency enforcement efforts had been overzealous.

Reaction to DeVos’s announcement has been mixed. Women’s groups and survivors’ advocates have loudly protested that the changes will lead to an increase in sexual assaults, while representatives for accused students have hailed the potential to bring more fairness to the school disciplinary process.

Although the Department has not yet announced a timetable for when the rulemaking process will occur, it intends to seek the input of a wide variety of stakeholders when drafting the new regulations. Notably, Title IX is not subject to negotiated rulemaking requirements, but the Department may decide to solicit public comments prior to issuing a proposed rule. DeVos has also indicated that she plans to rescind the current guidance once the Department develops interim guidance to inform schools how to comply with Title IX until the new regulations are finalized.

Many of the legal requirements set forth in the current guidance are derived from judicial opinions on Title IX that will continue to apply even after the guidance is rescinded. As a result, although the Department has recently relaxed its enforcement efforts, institutions of higher education should be advised that it would be premature to contemplate changes to their campus sexual assault policies at this point.

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