Give the Trump Education Department credit for rescinding the Obama Ed’s “Dear Colleague” letter of 2011 and opening a discussion about the meaning of Title IX. Under that law, “No person shall . . . on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” More than 7,000 colleges were sent the letter, which reinterpreted Title IX as providing the government authority to mandate the procedures for handling allegations of sexual misconduct.
As described by K.C. Johnson and Stuart Taylor, who often write on Title IX and published a book on the matter, the Dear Colleague letter told the colleges they must use the lowest possible standard of proof, a preponderance of evidence, to determine guilt in sexual assault cases. It required the colleges to allow accusers to appeal not-guilty findings and told them to accelerate their adjudications. The letter strongly discouraged cross-examination of accusers. Not incidentally, the policy expressed in the letter circumvented the usual regulatory process. It was as though Obama’s aides didn’t want “notice” or “comment” on what they called “guidance.”
In a speech at George Mason University, Education Secretary Betsy DeVos cited numerous instances in which the adjudicatory process was weighted clearly in favor of the accuser, violating due process. That was the fundamental problem with the “guidance” provided in the Dear Colleague letter—and why it had to be changed so that there can be due process for all.
Devos is consulting widely on how Title IX should be enforced, so that “America’s schools employ clear, equitable, just and fair procedures. That’s well and good, but Congress needs to step up, too.
The Dear Colleague letter was one of the many executive actions taken by the Obama administration, effectively displacing the Congress, which under the Constitution is supposed to make the laws. Says Republican Senator James Langford, “This is an issue where Congress must give the Department of Education clear statutory authority to properly regulate.”
We’ll see if that happens, knowing that if it doesn’t, yet other unconstitutional executive actions reinterpreting IX could be advanced, even by a Republican Education Department.
