Courtesy of Gage Skidmore
In a move that outraged many advocates for survivors of sexual assault, Secretary of Education Betsy DeVos announced on Sept. 7 that her department would reexamine Obama-era guidelines regarding how colleges handle sexual assault claims under Title IX. DeVos’s remarks, delivered at George Mason University, came after she met with various groups to discuss sexual violence on campuses.
Title IX is part of the Education Act of 1972, and it states that “No person in the United States 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.” Many people associate Title IX with the effect it had on women’s athletics in schools, but Title IX also includes provisions about how colleges and universities handle cases of sexual assault.
Sue Ritter, the Title IX coordinator at the College, explained that because the College receives federal funds, we must comply with Title IX, which includes directives that govern the implementation and enforcement of sexual assault and sexual harassment policies. “Any college or university that receives federal funding regardless of whether they’re public or private has to comply with Title IX and it’s the federal law that prohibits sex discrimination,” Ritter said. “Sexual assault is a form of sex discrimination just as sexual harassment is a form of sex discrimination — the theory being that if you are sexually assaulted it has such a profound impact on you that it essentially denies you equal access to educational programs or activities.”
Though DeVos did not make any concrete policy proposals during her speech, she emphasized the need for due process in Title IX enforcement. “The truth is that the system established by the prior administration has failed too many students,” DeVos said, adding that part of why our system is failing is because it lacks due process.
“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,” she said. “The notion that a school must diminish due process rights to better serve the ‘victim’ only creates more victims.”
Ritter explained what a renewed emphasis on due process might entail. Due process “means notice and an opportunity to be heard,” Ritter said. “The college must notify the responding party of the actual charges instead of just investigating and not letting them know what they’re investigating. The respondent should also have an opportunity to present their side of the story.”
Karen Guttentag, a judicial affairs dean at the college, noted that DeVos’ focus on due process could reflect DeVos’ desire to rebalance the system.
“I think that her reference to due process is because of her overall assessment that the pendulum has swung too far in favor of complainants as a result of the directives in the Dear Colleague Letter,” Guttentag said.
She explained that due process grants important rights to the respondent in sexual assault cases, including the right to tell their side of the story and the right to be informed of the nature of the charge. Guttentag also added that the College’s policy for adjudicating sexual assault already grants grants respondents and complainants these identical rights.
In her address, DeVos identified the Obama administration’s Dear Colleague Letter from 2011 as one of the main reasons why she believes the current system does not function properly. The letter, which Department of Education published to augment existing Title IX regulations, served as a reminder to colleges that lack of compliance with Title IX can lead to loss of federal funding. It also provided new guidelines, including how quickly schools need to respond to reports of assault and what information they need to provide to all parties involved in a complaint.
In an interview with CNN, DeVos said that her department had already starting rolling back guidelines set back by the letter, and she confirmed her intention to revoke the letter entirely. In her speech, DeVos echoed a common critique of the letter — that Obama administration published it as a directive, rather than go through the legislative process to turn their new guidelines into law.
“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 un-elected and un-accountable political appointees,” she said. She seemed to indicate she would not take the same route, adding, “The era of ‘rule by letter’ is over.”
One potential impact of the Department of Education changing the guidelines set forth by the letter would be a change in what standard of proof schools use to rule on sexual assault cases. The letter dictated that schools’ use of the “preponderance of the evidence” standard, one of the lowest burdens of proof in the U.S. legal system. The preponderance of the evidence standard says that if it is more likely than not that an assault occurred then colleges should rule that an assault occurred.
Many advocates for the accused and legal scholars have proposed changing that standard over the years, and in her speech DeVos referenced a paper from the American Trial Lawyers Association that suggests raising the standard to “clear and convincing evidence.”
Proponents of the Obama-era guidelines were quick to criticize DeVos, including former Vice President Joe Biden, who called DeVos’ speech a “step in the wrong direction” in a Facebook post the same day.
“Any change that weakens Title IX protections will be devastating,” he said. “Students have taken on this fight. Keep fighting. Tell this administration that we refuse to go backwards.”
Others praised DeVos for taking steps to balance the system, which some fear swung too far in favor of complainants under the Obama administration. Robert Shibley, the executive director of the Foundation for Individual Rights in Education, an organization that has challenged the Dear Colleague Letter in the past, praised DeVos’ speech.
“I thought it was a strong signal from the department that they understand the current approach is unworkable,” Shibley said in an interview with The Washington Post.
As of now, it is unclear exactly what changes will be made to the Department of Education policy regarding Title IX sexual assault enforcement on campuses. In her address, DeVos announced her intention to gather more information from relevant groups through “a transparent notice-and-comment process” in order to improve our system.
“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 said.
Until definite changes to the policy are announced, Ritter said it is hard to know how DeVos’ speech will affect the College’s policy. However, Ritter also pointed out that our current adjudication process was modeled after the 2013 reauthorization of the Violence Against Women Act (VAWA), which includes additional requirements about how campuses handle sexual assault claims. Ritter said that the provisions in this act cover some of the concerns DeVos raised about equity.
“VAWA answers, I believe, a lot of the concerns Betsy DeVos has about fairness to both parties. It’s scrupulous in that regard,” Ritter said. “What you do for one you have to do for the other and you have to be fair, thorough, balanced and unbiased for both sides.”
According to Ritter, the College has tried to model their policy closely to VAWA in order to promote a fair process “because if you don’t do that the [system] will collapse on itself,” she said.
Ritter and Guttentag both said that unless the Department of Education issues or passes a policy change, they plan to keep the college’s current policy in place. “Until we know more from DeVos, we plan to stay the course,” Ritter said.