September 22, 2017

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.

While schools figure out how to adapt their own policies, lawyers for the students involved are left with additional uncertainty, preparing to react to schools' increased autonomy. Michael Dolce of Cohen Milstein Sellers & Toll said there will be "tremendous confusion" in the absence of "dozens and dozens of pages of directives" implemented by the previous administration. Dolce represents victims of sexual assault, and said more than half of his cases involve institutions that either facilitated misconduct or failed to address it properly. "I would expect that any number of people are going to have questions for me about what this is going to do," he said. "I don't understand why we would throw away everything when we don't have something to replace it with."

Dolce added that he worries that students will be afraid to bring allegations if colleges stray from following the previously implemented rules. "This is a risky practice area in general because these are crimes that usually occur without any witness," Dolce said. "This is definitely going to have a chilling effect."

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