With Jonathan Helwink
On September 7th, Secretary of Education Betsy DeVos delivered an address regarding the Department’s revised approach to Title IX enforcement. Announcing the goal of “getting it right” on Title IX, DeVos indicated a new phase of Title IX enforcement. Here are six key takeaways from her remarks:
1. Continued Commitment to Enforcing Title IX. The Secretary stated that the Department is committed to continuing to enforce the obligations of colleges and universities under Title IX to prevent and address sexual misconduct on their campuses. But she indicated that the Department would take a more collaborative and less punitive approach with schools in enforcing the law.
2. No Immediate Change in Title IX Policy. The Secretary did not announce any immediate change – rescission or modification – to existing Title IX (or VAWA) guidance. So the Obama Administration’s Title IX policy guidance, including the requirement to use the preponderance of the evidence standard for evaluating sexual misconduct allegations, remains in effect.
3. Opportunity for Public Input. Stating that “the era of ‘rule by letter’ is over,” DeVos announced a “notice and comment” period to replace current Title IX guidance. No details were given as to the timing or format of this process. In general, notice and comment periods range from thirty to sixty days, but agencies have the discretion to extend the period to 6 months or more for “complex rulemaking”, which may be appropriate for Title IX.
4. Heighted Emphasis on Due Process. As expected, the Secretary expressed grave concern with respect to the procedural protections afforded to accused students in the disciplinary process. She gave a number of specific signals as to the Department’s views on the procedural protections that should be afforded in the process, including:
– Not requiring the use of the “lowest standard of evidence”
– Allowing attorneys to play a greater, more active role in the process
– Starting with a presumption of innocence (note use of criminal law terminology)
– No system “bias” toward finding a student responsible for sexual misconduct
– Adequate notice of specific allegations
– Requiring evidence to be shown to all parties (already required by VAWA)
– Allowing witnesses to be cross-examined
– Providing a right to appeal in all instances
– Not imposing “gag orders” prohibiting parties from talking to others about the process
Many of these due process protections echo themes heard from the Foundational for Individual Rights in Education in the report it issued earlier this week, and heard previously in recommendations (cited by the Secretary in her speech) of the ABA, the American College of Trial Attorneys, and professors from the law schools at Harvard and Pennsylvania.
5. Heightened Protection for Free Speech. Secretary DeVos took aim at university “harassment codes” and what she called “ambiguous and incredibly broad definitions of assault and harassment” that, in her view, punish students and faculty “simply for speaking their minds or teaching their classes.” She suggested that there needs to be more precision in the definition of sexual misconduct and harassment, so that schools do not “trample speech rights.”
6. Outsourcing Title IX Adjudicatory Responsibilities? While referring to the importance of public feedback on the replacement guidance, DeVos signaled interest in exploring “all alternatives.” Interestingly, the Secretary suggested that one alternative approach would be “to allow educators focus on what they do best: educate” and give the adjudication of sexual misconduct to professionals outside of the university setting. The Secretary opined that college and university administrators do not have the necessary legal expertise and training to adjudicate sexual misconduct cases and given this “competency gap,” they should instead draw upon others in this area. She stated, “Get out of the way and let the professionals do their jobs. Students, families, and school administrators are generally not lawyers and they’re not judges. We shouldn’t force them to be so for justice to be served.”
The bottom line is that institutions need to stay tuned for further developments in this area. HMBR will continue to monitor developments as they happen and will inform you when new information comes available.
For advice on steps that schools can take now to be ready for changes in federal policy and to position themselves to avoid Title IX litigation, see the blog posted earlier this week on “Smart Steps to Take Now to Avoid Title IX Litigation.”