The U.S. Department of Education issued new interim Title IX guidelines and rescinded the 2011 “Dear Colleague” letter Sept. 22, allowing institutions more freedom in their policies. Despite this new flexibility from the federal government, the new guidelines will not prompt any immediate changes to the University’s policies, wrote Rene Davis, Title IX program officer, in an email to The Herald.
The 2011 “Dear Colleague” letter — a document issued by the Department of Education under the administration of former President Barack Obama — designated a preponderance of evidence as the standard of proof for Title IX hearings and guaranteed the right to appeal for both parties. Preponderance of evidence means that “a hearing must find it more likely than not that the accused is at fault to determine guilt,” as The Herald previously reported.
The withdrawal of the letter and other Obama-era documents, as well as the issuance of new temporary guidelines under Secretary of Education Betsy DeVos, will allow institutions to determine whether only the responding party or both parties have the right to appeal. Colleges and universities may also choose to change the standard of evidence in order to require a higher burden of proof. This will allow institutions to move from the previously mandated preponderance of evidence standard to a clear and convincing evidence standard, according to the new guidelines.
The current guidelines are temporary, and the Department of Education will issue new Title IX rules after a period of public comment, according to a press release. Prior to the announcement of the temporary guidelines, DeVos had voiced concerns about due process for the accused, as The Herald previously reported. The new temporary guidelines build on those concerns, according to the press release.
Davis does believe the due process concerns are legitimate for some schools, The Herald previously reported. But “Brown’s policies and procedures are free from the concerns that prompted the withdrawal of the ‘Dear Colleague’ letters,” Davis wrote.
“We remain fundamentally committed to addressing sexual and gender-based violence,” wrote Brian Clark, director of news and editorial development, in an email to The Herald, adding that the University believes its Title IX policies are clear and equitable.
Amber Lowery ’18, a member of the Title IX Council and president of SAFE House: Students Against Domestic Violence, voiced concern about the freedom that institutions now have to determine who receives the right to appeal.
The University “has a history of protecting wealthy students,” Lowery said. If “a decision is made and … a wealthy student can appeal, and then the survivor isn’t able to appeal after that — that’s really problematic.”
“If, and it is a big ‘if,’ we are in a place to make change to our policy, we will include the advisory board … in addition to (the) broader Brown community … to evaluate proposed revisions,” Davis wrote.
“I don’t see Brown changing (the standard of proof) because of the culture on our campus and because of who is in charge of the Title IX office,” Lowery said.
Lowery has not witnessed measurable student activism in reaction to the new policies. But “if Brown were to make problematic decisions, I do think that people would step up. I think that people care about it,” she said.
