U.S. Secretary of Education Betsy DeVos gave a highly publicized speech recently about the federal government’s plan to revamp guidelines for handling allegations of sexual assault on college campuses. Having watched the speech live, I have found much of the subsequent news coverage to be confused and confusing. Below are some of my key takeaways that may be helpful to college and university administrators.
1. Schools have a continuing obligation to prevent and respond to sexual assault in keeping with current guidance.
Secretary DeVos did not announce any immediate changes to the Department of Education’s Title IX guidance, and the 2011 Dear Colleague Letter and 2014 FAQ document remain in effect. Secretary DeVos noted that higher education must continue to address the “scourge of sexual misconduct” and emphasized the importance of preventing sexual assault through education and training. Among other requirements, every college and university should continue on an annual basis to provide targeted training to:
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New students
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New faculty and staff
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School employees serving as investigators
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School employees serving as adjudicators (at both the initial hearing and appeals levels)
2. The Trump administration feels strongly about safeguarding the due process rights of accused students.
Secretary DeVos clearly is concerned about the plight of students who are falsely accused of sexual misconduct. While research indicates that false accusations are rare, I agree with the Secretary DeVos that “one person denied due process is too many.” Regardless of whether or not they are responsible for sexual misconduct, respondents are entitled to a fair and objective process that evaluates evidence rather than leaps to conclusions. On a practical basis, this means:
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Absent evidence of an immediate threat, interim accommodations should not have a negative impact on an accused student.
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Responsibility is never predetermined. Investigations should be impartial and accurate.
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Following an investigation, respondents should receive written notice of any policy violations with which they will be charged.
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Like complainants, respondents should be allowed to present evidence and plead their case directly to the decision maker.
3. The Trump administration ultimately will replace the current guidance contained in the 2011 Dear Colleague Letter with formal regulations.
Secretary DeVos pronounced that “the era of rule by letter is over” and indicated that the Department of Education would open a notice and comment period. These statements clearly signaled that the 2011 Dear Colleague Letter ultimately will be withdrawn and replaced by formal regulations. In addition to her procedural concerns, Secretary DeVos’ substantive view is that the current system is confusing, burdensome, and fails to meet the needs of complainants and respondents alike. In the coming weeks, I will relay information provided by the Education Department about the comment process. I encourage you to participate directly or by sharing your concerns and suggestions with me or other legal counsel.
4. It is unclear what specific changes will be made when new regulations are issued.
While Secretary DeVos noted that many interesting ideas have been proposed, she indicated that no decisions have been made and the Education Department is in a consideration phase. As discussed in my August 29 webinar, much of the current sexual misconduct response structure has been codified into law and will not change absent (highly unlikely) congressional action. In my view, the change most likely to come from the Education Department is the abolition of the current requirement to use “preponderance of the evidence” as the standard of proof in sexual misconduct adjudications. It is possible that the Education Department would impose a replacement requirement to use a higher standard such as “clear and convincing,” but I think it is more likely that schools would be left to decide for themselves which standard to employ. Bottom line: This will be a lengthy process. Stay tuned.
Many opinion pieces about the DeVos speech – both pro and con – were published over the weekend, but most shed more heat than light. If you are interested in reading two of the better ones, I recommend the following, both of which were published in The Washington Post:
