Just as she told the public she would, Education Secretary Betsy DeVos rescinded the Obama administration’s controversial guidance on Title IX Friday. A new set of guidelines—in the form of an interim “Q&A on Campus Sexual Misconduct”—will take its place until replacement rules receive full notice and comment.
“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” said Secretary DeVos on Friday. Echoing her Sept. 7 speech on the subject, she said, “Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”
Scrapping the guidance, some say, sends us back to the day before an infamous “Dear Colleague Letter” mandated an unjust adjudicatory framework for reported sexual misconduct on college campuses. The late DCL “created a system that lacked basic elements of due process and failed to ensure fundamental fairness,” an Education Department statement reads, but claimed as its statutory basis a decades-old gender parity law.
Taking the place of this “Dear Colleague Letter,” new rules give schools greater freedom to create their own procedures. Significantly, colleges can now decide to apply the “preponderance of evidence” standard the previous guidance required, or choose a stricter clear and convincing standard. Broadly, the interim guidelines stipulate that “a school may not rely on fixed rules or operating assumptions that favor one party over another.” In another turn toward justice, the “Q&A” demands written notice to inform an accused party of the specific allegations brought against them. “Shocking,” snarked Laura Kipnis, the poster professor for Title IX absurdism, via Tweet: “Also a complete departure from past practices,” she added.
Robert Shibley of the Foundation for Individual Rights in Education, author of Twisting Title IX, considered Friday a banner day for fundamental fairness on campus. (Minutes after we spoke, FIRE sent out a press release, “Dear Colleague: It’s Over!”)
“The 2011 ‘Dear Colleague Letter’ regime was not working and the right thing to do was to go through the proper regulatory process,” which is just what the feds have planned, he told THE WEEKLY STANDARD. For now, “The interim guidelines are mostly a return to the status quo before April 4, 2011.” He welcomes a reset and looks forward to the proper notice-and-comment process for the slate of replacement rules.
“Frankly, I think it’s been six and half years of missed opportunity to work on a system that would work better,” Shibley said. “Nobody can argue it was a fair process coming up with those guidelines.”
But fair process isn’t the only area for agreement. In a move applauded even by victims’ rights advocates, who otherwise criticize the measured and predictable decision to rescind the DCL, DeVos’s interim guidelines also cover the Clery Act—a law requiring colleges to report sexual assault data to the Department of Education. In past years, data collected under the Clery Act have grossly conflicted with statistics used to promote the former guidance.
Laura Dunn, founder of the victims’ advocacy group SurvJustice, welcomed the merging of these two laws into one practical framework while also railing against DeVos’s justice-for-all approach to reform: “Title IX only protects those victimized by sex discrimination, including in the form of sexual harassment and violence,” said Dunn in a statement Friday.
Those who disagree with Dunn that Title IX only applies to complainants welcome the regime’s unraveling. Advocates for students falsely accused or denied fair process under the DCL’s mandate—and fans of fairness in general—herald the rescission but still doubt the DCL’s legacy can be undone.
Andrew Miltenberg, an attorney who defends students’ due process rights, described an unchangeable regime of injustice in an interview with TWS earlier this year—but today, he sounds a bit more hopeful. “The due process rights for which we have advocated on behalf of our clients, more than 100 accused students, have finally been acknowledged by the Department of Education,” said Miltenberg. “Of course, we will have to see in what measure educational institutions enforce this new guidance.” The coming notice and comment period will be a test, he added, of whether schools can accept their responsibility to protect the rights and safety of all students in their charge.
Brett Sokolow, an attorney whose Association of Title IX Administrations guides risk-averse institutions through the bureaucratic jungle, likewise acknowledged the unlikelihood of change and the activists’ grip on campus culture. “Advocacy groups, activists, and the media will keep the pressure on to ensure that there is no tolerance for mishandling allegations of sexual violence, and that colleges do not roll back protections,” he predicted. There’s no going back: “The pre-2011 days are, indeed, gone for good.”
