U.S. Education Secretary Betsy DeVos arrives at the dedication ceremony of Michigan State University's new Grand Rapids Medical Research Center on Wednesday, Sept. 20, 2017, in Grand Rapids, Mich. (Photo: Cory Morse/The Grand Rapids Press via AP)

The U.S. Department of Education has reversed Obama-era Title IX guidelines on sexual misconduct investigations, announcing that schools may use a higher standard of evidence in adjudicating allegations and that the Department is planning to take comments from stakeholders to establish new rules regarding schools’ responsibility to shield students from sex discrimination.

New, temporary Title IX guidelines instruct schools to use either a “preponderance of the evidence” or a “clear and convincing evidence” standard in determining whether an allegation of sexual misconduct is true, and adds that the standard of evidence for sexual misconduct cases should be consistent with that used for other cases of student misconduct. This differs from the guidelines set forth by a 2011 “Dear Colleague” letter issued by the Department of Education under the Obama administration, which required that only a preponderance of the evidence standard be used, arguing that the standard is consistent with that used to adjudicate civil litigation involving discrimination.

Under the preponderance of the evidence standard, schools were required to rule that a student was guilty of sexual misconduct if investigators determined that there was at least a greater than 50 percent chance an allegation was true (i.e. it was more likely than not that sexual misconduct occurred). The new guidelines give schools the option to instead adjudicate using a higher standard that requires a determination that it is “substantially more likely than not” that an allegation is true, according to the Cornell Law Schools legal dictionary.

The Department of Education’s announcement states that it is withdrawing the 2011 Dear Colleague letter, as well as a document titled “Questions and Answers on Title IX Sexual Violence,” which set additional guidelines in 2014. The Department issued a new document, “Q&A on Campus Sexual Misconduct,” which sets forth the new temporary rules, including the option to increase the standard of evidence. The document also removes the required 60-day timeframe for investigating allegations, saying there will be no fixed timeframe but that the Department’s Office of Civil Rights will “evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with a resolution.”

These rules will remain in place until the Department establishes new rules after weighing comments from stakeholders such as school officials, students, parents and sexual assault survivors in the coming months.

Education Secretary Betsy DeVos stated earlier this month that the rules were to be changed, telling an audience at George Mason University that “the era of ‘rule by letter’ is over” and that the previous administration erred by setting the standard of proof too low, according to the Associated Press.

“Instead of working with schools on behalf of students, the prior administration weaponized the Office of Civil Rights to work against schools and against students,” she said. “Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined.”

The new announcement was praised by Andrew Miltenberg, a New York lawyer who has represented students accused of sexual assault, who said it put forth “a much more stringent standard and one that is less open to subjective interpretation,” according to the Associated Press. Following the 2011 guidelines, over 150 lawsuits, many by male students who claim their rights were violated after they were accused of sexual misconduct, were filed against colleges and universities, while only 15 similar lawsuits had been filed in the 20 years before those guidelines were established, according to the Washington Post.

Several women’s groups and sexual assault victim advocates, however, said the new guidelines would hurt survivors of sexual misconduct and increase victims’ fear of speaking out and having their allegations dismissed. One group, End Rape on Campus, condemned the new guidelines, with co-founder and director of education Sofie Karasek saying, “Today, Betsy DeVos and the Trump Administration chose to tip the scales in favor of rapists and perpetrators. Rolling back this guidance is an affront to the students, survivors, and allies who have fought to bring the sexual assault epidemic out of the shadows.”

The previous administration’s efforts to combat campus sexual assault included the establishment of the “It’s On Us” initiative and the White House Task Force to Protect Students from Sexual Assault in 2014. Former Vice President Joe Biden helmed the initiative, and said, during the final It’s On Us summit in January, that he would stay devoted to the movement’s anti-violence goals. Biden tweeted following the Education Department’s announcement, saying, “Today’s Title IX decision is shameful, but the law is still the law. Colleges & universities must honor obligations to students & survivors.”