In 2011, the Department of Education under President Obama issued a “Dear Colleague” letter to educational institutions receiving federal financial assistance outlining their responsibilities under Title IX of the Education Amendments of 1972 to take steps to ensure an educational environment free from discrimination. One of its more controversial provisions was a requirement that in disciplinary proceedings adjudicating complaints of student-on-student sexual misconduct, the institution use a “preponderance of the evidence” standard in establishing the defendant student’s guilt, rather than the higher “clear and convincing evidence” standard that is sometimes used in civil proceedings in which the respondent may be deprived of an important personal liberty right or interest (e.g. termination of parental rights, civil commitment, deportation).

Last November, current Education Secretary Betsy DeVos published new proposed regulations for comment, which among other provisions partially reversed the Obama Dear Colleague letter, and would permit, but not require, educational institutions to use a clear and convincing standard in determining a student’s guilt. A number of women’s advocacy organizations, as well as some general civil rights organizations, oppose the change and agree with the Obama rule that imposed the mere preponderance standard.

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