In 2011, the Department of Education’s Office for Civil Rights issued a Dear Colleague letter that urged institutions to better investigate and adjudicate cases of campus sexual assault. The letter spelled out how the department interprets Title IX of the Education Amendments of 1972, and for the past five years it has been the guiding document for colleges hoping to avoid a federal civil rights investigation into how they handle complaints of sexual violence.
The department’s views were praised by victims and their advocates and led to many changes on college campuses, particularly on the issue of burden of proof when campus judicial systems handle sex assault charges. Republican lawmakers and other critics have argued that the guidance goes farther than just clarifying Title IX. They say the department illegally expanded the gender discrimination law’s scope without going through proper notice-and-comment procedures. At the center of that argument -- as well as several recent lawsuits against colleges and the Department of Education -- is that OCR forced colleges to use the lower standard of proof.
With Donald Trump winning the presidential election last month and this year's GOP platform stating that the White House's work on the issue "must be halted," many believe the next incarnation of the department will scrap the 2011 guidance, allowing colleges to return to using whatever standard they deem appropriate. That doesn’t mean, however, that use of the preponderance of evidence standard will dramatically decrease, even while some administrators worry about no longer being able to point to the department’s guidance when they are sued by students who believe their due process rights were violated.
Read more at Inside Higher Ed: https://www.insidehighered.com/news/2016/12/16/will-colleges-still-use-preponderance-evidence-standard-if-2011-guidance-reversed