Nearly a year since her landmark decision to rescind the Obama administration’s controversial campus sexual assault rules, Betsy DeVos’s Education Department has a plan to replace them. The New York Times reported Wednesday that a draft of the replacement rules insists upon a stricter standard of proof and clarifies the definition of sexual assault. These new rules, which a department spokeswoman said were released in a preliminary form, also propose to answer the problem of universities’ vague accountability: Only formally reported complaints of on-campus assaults fall under a school’s jurisdiction.
The draft regulation the report corrects imprecisions and injustices created by the rescinded guidance documents. And unlike the successive “Dear Colleague” letters issued during Obama’s second term—guidance documents fortified by public pressure to crack down on a perceived campus rape epidemic—these new rules will take effect only after a “notice and comment” period. Having passed through the proper regulatory process, in other words, they’ll have the force of law, which the previous guidance never did.
Title IX lawyer Andrew Miltenberg—who successfully defended the Columbia student accused by Emma Sulkowicz aka “Mattress Girl”—called the reported replacement rules “an amazing step in the right direction.” In another recent interview he’d described the hegemonic attitude toward sexual assault adjudication in higher education as deep-seated, emotionally informed, and nearly impossible to reverse. “It’s well intentioned,” he said Wednesday of the new rules we’d read about in the Times, “but there will a lot of debate between now and then as what actually becomes codified.” Plus, “Schools are going to have and going to exercise a lot of discretion in how they handle things,” he added: Interim measures, the procedure between the filing of a complaint and deciding of a case, would still be up to individual universities—where resistance will more than likely rage on. At least Wednesday’s story will help gauge how much pushback to expect, he added, wondering if it had been, “An accidental-on-purpose internal leak to see what the process is going to look like and what sort of response there’s going to be.”
After a planned notice and comment period, DeVos’s regulation will be binding as the Obama administration’s guidelines weren’t. But what these new rules won’t have is the old guidance’s broad cultural support in campus communities. The failure of due process for students accused of misconduct is the chief concern of the old rules’ critics. But—although the 2011 Dear Colleague letter required a lower standard of proof than due process advocates prefer—a movement to prioritize claimants in such cases was well underway. The Obama administration only hardened what was already, if not a common practice, at least a dominant philosophy. The erstwhile guidance, though technically non-binding, effected such a broad and lasting change because it nudged schools in a direction they were already headed.
A real recommitment to fairness would begin at a deeper level than new regulation. Changing policy on a college campus is “like trying to turn a cruise ship,” Title IX expert and campus consultant Brett Sokolow told TWS in an earlier discussion of whether DeVos’s Education Department could do anything to ever really fix the elements of unfairness in how campuses choose to adjudicate these claims.
To steer them back toward actual equity—gender parity being, after all, the first intent of Title IX—requires nothing less than rewriting the law to correct the worst parts of the last administration’s pen-and-phone diktat. This was DeVos’s plan all along: The interim guidelines that took the place of the rescinded rules this time last year were never built to last. Their forthcoming formal replacement, though long expected, is a move in the right direction—one which none of the predictable party-line debate arisen in the wake of yesterday’s report has no power to prevent.
