As of 9/22/2017, the U.S. Department of Education has withdrawn the 2011 “Dear Colleague” letter (DCL). From their recent guidance letter:
Legal commentators have criticized the 2011 Letter and the 2014 Questions and Answers for placing “improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” As a result, many schools have established procedures for resolving allegations that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”
Among other things, the new letter revokes the following:
- The mandate that schools use the insufficiently low burden of proof – the preponderance standard – in adjudicating sex-assault accusations against students.
- The ban on cross-examinations of accusers’ statements.
- Various other provisions which created rushed and haphazard investigative and adjudicatory processes that – rather than encouraging schools to defer criminal matters to law enforcement professionals – encouraged schools to instead act independently of them, and at times contradictory to them.
This is a definite step in the right direction, and a solid victory for due process.
Pointing at the illegitimacy of the 2011 DCL, the letter further remarks that the previous administration “imposed these regulatory burdens without affording notice and the opportunity for
public comment.” The Dept. of Education has issued interim guidance via a Q&A, and announced an imminent new rulemaking process.
As for Title IX For All, there are no plans to wind down maintenance of the lawsuits database. In fact, the database has seen a wave of recent updates, and will see more in the near future. If you have any updates that we have missed, please submit them via the submission form.
Rape and sexual assault are crimes, and it is the purview of the criminal justice system to investigate and resolve such accusations. School administrations are not – and can never be – sufficiently equipped or trained to handle every such accusation. Instead, their primary role should be to coordinate with and defer to the criminal justice system, making necessary accommodations for accusers and the accused, and making sure to never discourage accusers from filing charges. While issuing new guidance to make school-based investigations more equitable is certainly needed, the long goal should be to move toward a model that defers these cases to the appropriate avenue of redress: the criminal justice system.
We can expect all manner of belligerence from the enemies of due process over the coming weeks. What differentiates us should be clear: due process is a human right, and human rights – just like the rights Title IX embodies – should be for everyone.