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On September 22, 2017, the U.S. Department of Education and Secretary of Education Betsy DeVos announced plans to significantly revamp the process by which schools investigate and adjudicate allegations of sexual-based student misconduct pursuant to Title IX of the Education Amendments of 1972.  A landmark amendment to the Higher Education Act of 1965, Title IX prohibits sex-based discrimination in education.

In 2011 and 2014, the Department of Education’s Office for Civil Rights released two extensive guidance documents regarding Title IX:

  • The “Dear Colleague” letter, dated April 4, 2011.
  • “Questions and Answers on Title IX and Sexual Violence,” dated April 29, 2014.

In tandem, these two documents mandated specific procedures to colleges and K-12 schools regarding the procedures by which school officials conduct investigations and hearings pursuant to allegations of student-to-student sexual misconduct.

The 2011 Dear Colleague letter and 2014 Q&A companion document were both rescinded on September 22nd and replaced by new interim guidance for schools. Ms. DeVos provided clear foreshadowing to the rescission of the documents with remarks during a speech at George Mason University’s Antonin Scalia Law School on September 7, 2017. At the event, sponsored by the law school’s chapter of the Federalist Society, Ms. DeVos proclaimed that the “rule by letter” era is over. Rather, the Department of Education intends to create a new rulemaking process that will appropriately consider and incorporate key elements of public input. Ms. DeVos claimed that the prior guidance documents “weaponized the Office of Civil Rights to work against schools and against students.”

Notably, the Department of Education is clear that all existing resolution agreements pursuant to the prior guidance documents shall remain binding on the schools that entered into them.

The Prior Regulations – 2011 Dear Colleague Letter and 2015 Q&A on Title IX

Both opponents and supporters of the OCR documents tend to agree on the fact that the prior guidance provided was very well-intended.  Opponents, including Ms. DeVos, claimed that the documents presented a “stacked deck” against the accused.  For example, the 2011 Dear Colleague letter provided the following:

  • Standard of Proof. Schools were required to adopt a lower standard of proof, the preponderance of evidence standard, throughout grievance procedures regarding sexual-based misconduct. Per this standard, a school was required to determine if it was more likely than not that sexual harassment or violence occurred.
  • Cross-examination. Schools were discouraged from allowing the parties to personally question or cross-examine one another in the grievance process, rationalizing that allowing the accused to question the alleged victim could be traumatic and possibly escalate to a hostile environment.
  • Expedited Process. A school was prohibited from relying on investigations or conclusions of a criminal investigation before conducting their own Title IX investigation.
  • Schools were mandated to allow both parties to appeal the outcome of a complaint, whereas most schools had previously followed procedures that only allowed an appeal from accused students. 

Given these mandates, which are not exhaustive of the Dear Colleague letter requirements, critics of the letter declared that the procedures diminished an accused student’s due process rights by requiring a speedy determination of fact with a very low standard of proof, by withholding the ability of the accused to question the complainant, and not allowing a consideration of the findings via a formal criminal investigation if not timely conducted. As such, those who have been wrongly accused face severe and life-long repercussions based on whether or not they were found to have “more likely than not” committed a sexual-based offense.  Additionally, opponents of the letter claim that prior guidance was imposed without notice and opportunity for public input.

While pointing out some of these perceived equities, the Department of Education nevertheless highlighted the “remarkable progress toward an educational environment free of sex discrimination” in its September 27, 2017 “Dear Colleague” letter. This, the Department states, is based largely on the part of the OCR’s “vigorous enforcement” of Title IX.

The “New” Approach – 2017 Dear Colleague Letter and Interim Q&A

While the Department of Education develops a new approach for schools regarding Title IX complaints and grievance procedures, OCR has released a new Dear Colleague letter and corresponding “Q&A on Campus Sexual Misconduct” to provide interim guidance. Given the removal of the 2011 and 2014 mandates, the September 22, 2017 Dear Colleague letter refers schools back to two prior guidance documents on Title IX:

  • “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties,” dated January, 2001.
  • “Dear Colleague Letter on Sexual Harassment,” dated January 25, 2006.

Meanwhile, Ms. DeVos has vowed to undertake a more “notice and comment” rulemaking approach while developing new directives regarding sexual misconduct and Title IX. Ms. DeVos has obtained input from a number of separately conducted meetings with sexual assault survivors, students who claim they have been falsely accused of sexual assault, and college officials. Additionally, Ms. DeVos met with several advocacy groups and states she is planning more meetings and “listening sessions.”

Simply put, Ms. DeVos and the Department of Education present the perspective that the former process was unduly burdensome on the schools, the victims, and the accused without the benefit of equity or resolution. The new process will aim to find a better balance of fairness for both the victims and the accused.

Ms. DeVos’ recent announcement does not exist without quite vocal opposition. Protestors and opponents are deeply concerned that this reform will weaken Title IX protections to the vast detriment of sexual assault victims. Some adamantly state that different priorities and standards should be applied when investigating and analyzing various types of student misconduct.  In other words, how could it be appropriate to apply the same standard of proof to a sexual assault case as a plagiarism?

Opponents of the reforms also stress that crucial protections for victims need to be kept in place during and after a grievance process. Effects of new guidelines could be devastating to victims and survivors of sexual assault in an educational setting. Regarding the current rulemaking process, victims’ advocacy groups declare that Ms. DeVos needs to devote far more time and attention to sexual assault survivors in her fact-gathering sessions than to groups such as the National Coalition for Men.

Lastly, many of DeVos’ challengers believe that new reforms will discourage schools from taking meticulous steps in complying with the law, thus sending a distressing message to students that their government is not protecting them. More specifically, an opponent at the National Women’s Law Center asserts that this will return us to a time where sexual assault was often and tragically swept under the rug.

One simple, potential middle ground of hope that opponents and supporters in this matter may agree on is this: Any and all dismissive words and actions against a student’s sexual assault claims are absolutely unacceptable, but every accused student should be afforded proper due process rights, which are foundational to our legal system.