Commentary

What DeVos Got Wrong in Her Speech on the ‘Dear Colleague’ Letter

September 11, 2017

It is clear that changes are in the offing for how colleges and universities handle allegations of sexual misconduct. Whether those changes will involve a radical reboot or more modest attempts to improve an imperfect system remains to be seen.

During a speech last week, the education secretary, Betsy DeVos, hinted that significant change may be necessary. She used the phrase “failed system” 13 times to refer to the way colleges and universities have handled allegations of sexual misconduct since the Obama administration’s influential 2011 “Dear Colleague” letter.

In making that assertion, Ms. DeVos relied on a “parade of horribles” that was based almost exclusively on anecdotal, one-sided allegations in litigation. She also made significant misstatements regarding the state of the law and regulatory guidance.

Here are a few of her more significant assertions and misstatements, taken from the text of her prepared remarks:

 

It’s not clear what Ms. DeVos is referring to here. There is the 19-page 2011 “Dear Colleague” letter, which was fairly straightforward. In the event that there was any confusion about that guidance, the Education Department in 2014 issued a detailed “Questions and Answers on Title IX and Sexual Violence” document, which provided straightforward answers to common questions regarding institutional handling of sexual-violence complaints.

 

Throughout the speech, Ms. DeVos referred to a “failed system,” which presumably is a reference to the 2011 letter. It bears noting that many of the complaints filed by alleged victims of sexual misconduct predated the letter, and the rest seemingly complained that their schools had failed to adhere to the dictates of that document.

 

Ms. DeVos is apparently referring to a 2015 lawsuit involving Stony Brook University, a campus of the State University of New York, and allegations made by a former student. It is worth noting that Stony Brook has denied those allegations. In addition, the policies in place at the time of the incident were revamped more than three years ago.

 

This is a case involving the University of Southern California, and Ms. DeVos is referring to allegations made by the plaintiff’s counsel. The lawyer for USC has denied those allegations and has offered a detailed account of why the student at issue was disciplined.

 

This is apparently a reference to a situation involving a student at the University of Tennessee who entered the name of a porn star on a quiz when asked to identify the name of his lab instructor.

A faculty member complained to UT’s Office of Equity and Diversity, which met with both parties involved in the case and understood that they had resolved the situation. There was no investigation of the incident.

 

Pursuant to the Violence Against Women Act’s amendments to the Clery Act, both the accuser and the accused in institutional disciplinary proceedings are legally entitled to an adviser of choice and institutions are prohibited from barring lawyers from serving as advisers.

 

Institutions are legally required to provide for a “prompt, fair, and impartial investigation and resolution.”

In its 2014 “Questions and Answers on Title IX and Sexual Violence,” the department’s Office for Civil Rights, or OCR, also noted that “in all cases, a school’s Title IX investigation must be adequate, reliable, impartial, and prompt, and include the opportunity for both parties to present witnesses and other evidence.”

 

Institutional disciplinary proceedings must be conducted “by officials who receive annual training on the issues related to domestic violence, dating violence, sexual assault, and stalking, and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.”

In its 2014 “Questions and Answers on Title IX and Sexual Violence,” OCR also noted, “All persons involved in implementing a school’s grievance procedures … must have training or experience in handling sexual violence complaints, and in the operation of the school’s grievance procedures.”

 

Following her speech, Ms. DeVos did not rescind the 2011 “Dear Colleague” letter. In addition, the department has issued numerous guidance documents, including virtually all of the agency’s guidance on Title IX issues in athletics, that remain in place.

 

With respect to harassment, the definition recognized by both Republican and Democratic administrations as well as the Supreme Court for almost 20 years has been: “conduct of a sexual nature that is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment.” The 2011 letter did not change that definition. It is not clear what definition of “assault” DeVos is referring to.

 

In its 2014 “Questions and Answers on Title IX and Sexual Violence,” OCR noted that the 2011 guidance “did not expressly address First Amendment issues because it focuses on unlawful physical sexual violence, which is not speech or expression protected by the First Amendment.”

However, it noted that OCR’s previous guidelines on the First Amendment remained fully in effect. In those, “OCR has made it clear that the laws and regulations it enforces protect students from prohibited discrimination and do not restrict the exercise of any expressive activities or speech protected under the U.S. Constitution.”

It went on: “Therefore, when a school works to prevent and redress discrimination, it must respect the free-speech rights of students, faculty, and other speakers. Title IX protects students from sex discrimination; it does not regulate the content of speech. OCR recognizes that the offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a hostile environment under Title IX.”

Scott D. Schneider is a lawyer who specializes in higher-education issues at the firm Fisher Phillips.