Following the Department of Education's announcement Sept. 22 that it is rescinding Title IX guidance on sexual misconduct issued under President Barack Obama's administration, colleges and universities were left scrambling for answers and lawyers started to consider how their practices may change.

Education Secretary Betsy DeVos issued a brief bit of guidance Sept. 22, releasing a seven-page Q&A document. In a major departure from the previous rules, the new guidance raises the standard of proof for school disciplinary proceedings in some instances, saying educational institutions may use a clear and convincing standard in sexual misconduct investigations, rather than the lower preponderance of evidence standard.

Lawyers who represent schools said they're already getting questions from their clients on how to respond to these changes, as the Sept. 22 announcement left them with questions about a number of rescinded provisions. And lawyers for students, both the accused and their accusers, said their roles may expand depending on how the forthcoming guidelines develop.

Representing Schools

Gina Maisto Smith and Leslie Gomez of Cozen O'Connor, who work with colleges and universities on responses to sexual misconduct, said because the new guidelines remove mandates and create more choice for schools, their clients will need help in making decisions. For example, they said, the interim rules give undefined descriptors for school standards, like “appropriate.”