Eight months into the Trump administration, a long-awaited campaign to unwind Obama’s legacy on Title IX appears to have begun in earnest. Early Thursday afternoon in a speech at George Mason University, Betsy DeVos condemned the Obama administration’s 2011 “Dear Colleague Letter,” that has had an insidious influence on the adjudication of sexual assault cases on college campuses.
She vowed on Thursday to begin transparent public notice and comment, kicking off the standard regulatory process the Education Department’s Office for Civil Rights avoided six years ago. Following the formal process to replace the framework the DCL created will take more than a year. It will be worth the wait to legitimize a lasting solution, one that can’t be undone by a successor’s pen. Temporary compliance information and interim guidelines to direct schools’ practices, will take the place of the former mandate while the department determines and solidifies a lasting solution to replace the old rule.
“This unraveling of justice is shameful, it is wholly un-American, and it is anathema to the system of self-governance to which the Founders pledged their lives over 240 years ago,” DeVos declared. The way forward begins with “reframing,” or reconsidering the underlying challenges. Confusion over degrees of consent and what “sexual misconduct” actually means have only muddied already complicated cases.
One such solution might include the establishment of “regional centers” that would involve partnerships between law enforcement and higher education institutions to process allegations of sexual assault impartially, in concert with state attorneys general—and apart from a college community whose cultural toxicity the 2011 DCL took aim at. (The “regional centers” approach gets thorough and a clear-eyed treatment in this 2016 paper by lawyers Gina Smith and Leslie Gomez.)
DeVos’ remarks drew a sharp line between the intent of the original statute, to protect all students from discrimination on the basis of sex, and its interpretation under the still active regulatory framework. She even lauded the Obama administration for for “elevat[ing] the issue … out from the backrooms of student life offices and into the light of day.” And yet activists who’d been expecting such action on Title IX immediately kicked off a campaign to #StopBetsy.
“Too many fall short,” DeVos said, “of their responsibility under Title IX to protect students from sexual misconduct.” She listed off just a few of the countless cases in which the adjudicatory system has denied justice to both parties—among them Zoe Katz, whose Title IX coordinator labelled her a victim of domestic battery despite her protests. DeVos invoked the hundreds of complaints students have taken to OCR, saying their schools failed them, and the dozens of lawsuits brought by accused students denied basic rights to due process.
Crucially, she did not deny the statutory basis for the controversial DCL and instead clarified a conviction that colleges are required by law to prevent and respond to sexual assaults: “Our interest is in exploring all alternatives that would help schools meet their Title IX obligations and protect all students”—and not “letting institutions off the hook.” The extra-judicial system set up by administrative diktat, enforced by intimidation and threat reputational damage or the loss of federal funds, is just the wrong way to hold them to this duty.
Ceasing to cast college administrators as investigator, judge, and jury will be a key step, too, DeVos said: “Students, families, and school administrators are generally not lawyers and they’re not judges. We shouldn’t force them to be so for justice to be served.”
Stakeholders reached by THE WEEKLY STANDARD on Thursday reacted to her speech with a mix of relief and anticipation. DeVos watchers had been waiting for an announcement on Title IX, wondering not whether but when she would act to rescind the controversial mandate. She will launch a notice-and-comment process to “incorporate all parties”—but the likely path forward will lighten the regulatory burden on colleges and cease to mandate the hair’s-breadth-likelihood “preponderance of evidence” standard.
“Despite some victim advocates’ vociferous criticism of Secretary DeVos’ remarks, the secretary exhibited a very clear understanding of the plight of sexual assault victims,” noted Cynthia Garrett, a California attorney who advised the Education Department on Title IX in concert with the American Bar Association. “What these advocates appear to be objecting to is the ending of a practice that has made it easier to find students responsible for sexual misconduct”—strong words from Garrett, whose colleagues in the ABA group joined with activists in criticzing DeVos even as the secretary cited their recommendations as a worthy guide for university leaders.
Her speech signals “a hugely important step in the right direction, and away from the Obama Administration’s virtual destruction of the presumption of innocence and due process,” in the words of Stuart Taylor, a Title IX expert who serves on the Federalist Society’s regulatory reform group and co-authored The Campus Rape Frenzy. “There is reason to hope that the notice-and-comment process that DeVos said she will launch will, as she vows, ‘employ equitable, just, and fair procedures,’” Taylor said, suggesting an optimistic view that right-minded top-down reform will trickle down to campus practices.
Brett Sokolow, who founded the Association of Title IX administrators and with it organized and spurred on a vast and growing campus sexual assault bureaucracy, said his organization “does expect the Department of Education to withdraw the April 4, 2011 Dear Colleague Letter (and subsequent 2014 Q&A guidance) in the coming months.” But, Sokolow adds—and he has told TWS as much in the past—undoing the guidance, lifting the funding-backed requirement, won’t change practices on campuses: “Yet, there is only so much OCR can change with the rescission of guidance, when the underlying fundamentals are unchanged.”
A biased system that came before, one with ties to earlier but less strenuously enforced interpretations of the statute and a strong grounding in dominant cultural attitudes, won’t change so simply—if ever. “Our standards,” Sokolow mourns, “should never have been dictated by appointees in Washington, DC to begin with. They should be dictated by our dedication to the principles of fairness, equity, and equal dignity. The need for this work has never been greater.”
