In a highly-anticipated speech delivered Thursday, Education Secretary Betsy DeVos announced the department is shifting its approach to Title IX enforcement away from that of the Obama administration, implementing a notice-and-comment process to develop an improved strategy based on feedback from the public.
The address, given before students and faculty at George Mason University, focused specifically on how her department will guide universities to handle investigations of sexual assault.
"For too long, rather than engage the public on controversial issues, the department's Office for Civil Rights has issued letters from the desks of unelected and unaccountable political appointees," DeVos said in her prepared remarks, referring to the Obama administration's decision to issue significant directives more than once in the form of "dear colleague" letters from the Education Department.
"The era of 'rule by letter' is over," she declared.
The secretary referred to "acts of sexual misconduct" as "acts of cowardice and personal weakness, often thinly disguised as strength and power."
"One assault is one too many. One aggressive act of harassment is one too many," DeVos remarked, continuing to add, "[o]ne person denied due process is one too many," in a critical nod to students who struggled to receive fair hearings from their schools under the previous approach.
Due process was a key focus of the secretary's address. Obama-era guidelines laid out in a 2011 "dear colleague" letter guided schools to adopt a "preponderance of evidence" standard when adjudicating the guilt of an accused offender.
"Due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one," DeVos said. "The notion that a school must diminish due process rights to better serve the ‘victim' only creates more victims."
The secretary slammed the Obama administration for "[weaponizing]" the department's Office of Civil Rights. Through "intimidation and coercion," DeVos argued, her predecessors "pushed schools to overreach."
"Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined. These are non-negotiable principles," she emphasized.
DeVos argued the previous system disadvantaged both survivors and students battling false allegations. "Survivors aren't well-served when they are re-traumatized with appeal after appeal because the failed system failed the accused. And no student should be forced to sue their way to due process," she noted.
Though DeVos stopped short of explicitly saying the policies outlined in the Obama administration's contested 2011 letter were rescinded, she announced the department was launching "a notice-and-comment process to incorporate the insights of all parties in developing a better way," ushering in a new era for higher education based on
"We will seek public feedback and combine institutional knowledge, professional expertise and the experiences of students to replace the current approach with a workable, effective and fair system," DeVos promised. (For my part, I've already passed along a couple of relevant suggestions.)
As students head back to campus this fall, changes that encourage universities to follow guidelines that better protect the rights of their students could well prove to create a fairer and more effective system for everyone. It's past time for the Obama-era appraoch of "rule by letter" to end.
Emily Jashinsky is a commentary writer for the Washington Examiner.