Citing Obama-Era Failures, DeVos Will Replace Landmark Directive on Sexual Assault

Chronicle photo by Julia Schmalz

Last updated (9/7/2017, 5:58 p.m.) with more reaction to the announcement and analysis of what it could mean for colleges.

The Education Department will begin the process of replacing a signature Obama-era piece of guidance that laid out expectations for colleges from the federal government on protecting students from sexual violence, Betsy DeVos, the education secretary, announced on Thursday during a speech at George Mason University.

“The system established by the prior administration has failed too many students,” Ms. DeVos said. “Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved.”

It wasn’t immediately clear on Thursday whether it was possible that a 2011 “Dear Colleague” letter on complying with the gender-equity law known as Title IX would be left in place after the department put it through a process called notice-and-comment. But a department spokeswoman later clarified that the guidance would be replaced, and that, “in the interim, the department will make clear to schools how to fulfill their current obligations under Title IX.”

While Ms. DeVos credited the Obama administration with bringing attention to the issue of campus sexual assault, she was scathing in her criticism of how the guidance had manifested itself on campuses. “Washington’s push to require schools to establish these quasi-legal structures to address sexual misconduct comes up short for far too many students,” Ms. DeVos said, referencing official hearings used to settle complaints of assault on campuses.

As expected, the secretary stressed that the guidance had caused accused students’ due-process rights to be undermined. “No student should be forced to sue their way to due process.”

Ms. DeVos also sought to connect the issue with a focus on protecting free speech. “Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes,” she said.

Fears Among Advocates

Thursday’s announcement is confirmation for many advocates that their fears the department would walk back the letter were justified. Congressional Democrats and advocates have criticized Ms. DeVos and Candice E. Jackson, the acting assistant secretary for civil rights at the department, for their comments on sexual assault.

“With an acting assistant secretary for civil rights who blamed sexual assaults on alcohol and regret and a president with his own concerning history on the issue, it’s clear Secretary DeVos could use some suggestions on how to combat the epidemic of campus sexual violence,” Sen. Patty Murray, the top Democrat on the Senate’s education committee, said in a written statement on Wednesday. Ms. Murray, from Washington State, said she had hoped the education secretary would keep the regulations in place.

Advocates told The Chronicle on Wednesday that the situation was ominous. During a notice-and-comment period, survivors of sexual assault may be placed at a disadvantage in having their voices heard, said Alyssa Peterson, a policy coordinator for Know Your IX, an advocacy organization for sexual-assault survivors.

Alexandra Brodsky, a fellow at the National Women’s Law Center, said in an email that Ms. DeVos was “using a dry-sounding procedure to hide a clear attack on student survivors’ rights.”

Many people have already applauded the current guidance, she said, and Ms. DeVos “already knows what the public thinks; she just doesn’t like what we have to say.”

During a news conference in July that followed a daylong “listening session” on Title IX, Ms. DeVos said the stories of the accused were being left untold.

“All students deserve protection. All students. And there has been a lack of clarity in this area,” she said. “I heard from both groups in ensuring that the process is fair to both parties, and they’ve acknowledged that it isn’t today.”

An Opportunity for Input

Dana Scaduto, general counsel at Dickinson College, in Pennsylvania, has been part of a group of campus lawyers who have held listening sessions with Ms. Jackson. Ms. Scaduto said colleges had been shut out by the department’s Office for Civil Rights under the Obama administration.

“It looks like we now have an opportunity to have input into the process,” she said.

Ms. Scaduto said colleges would like to have more flexibility in resolving complaints of sexual assault. Under the current guidance, colleges have only the option of conducting a full investigation and disciplinary procedure, or doing nothing at all. “We’re prohibited from mediation, for example. That’s not appropriate in all cases, but it would be helpful if we had more options,” she said.

Chris Perry represents a group, Stop Abusive and Violent Environments, that advocates for more procedural protections for accused students. “I’m encouraged by what I heard,” said Mr. Perry. He said Ms. DeVos seemed to be considering a variety of perspectives, including men who feel they were shortchanged by the current process.

“To the extent that they’re willing to open this up,” he said, “I don’t see how you can be discouraged.”

But the secretary didn’t lay out a specific plan, he added, “so we will just have to see how things develop.”

Confusion Over Specifics

While Ms. DeVos’s speech left some observers hopeful that the department would be more open to hearing colleges’ perspectives, it left others unsure about the compliance landscape right now. Some legal experts said Ms. DeVos had confused the directives of the 2011 letter with poor compliance under that guidance, as well as the requirements of laws such as the Violence Against Women Act.

Ms. Brodsky said Ms. DeVos had “baldly misrepresented” the contents of the letter, and accused her of complaining about procedural defects under the current system that are directly contrary to the guidance.

“The answer is obviously to enforce the law,” she said, “not to weaken it.”

Terry Hartle, a senior vice president at the American Council on Education, said “it’s easier to talk about the big picture, but there are very few details.”

The bottom line, said Mr. Hartle, is that the Trump administration “will replace legally binding guidance with legally binding regulations.” What’s not clear, he added, is how those regulations will be different and what process the officials will use to develop them.

The Education Department’s Office for Civil Rights is not required to go through the full negotiated rulemaking process, Mr. Hartle said. It could issue a proposed rule, then take comments for 60 or 90 days before issuing a final rule, he said, or take comments for a period before issuing a formal notice of rulemaking.

“It would be a mistake to read detailed policy outcomes into this,” Mr. Hartle said. But the big takeaways from the secretary’s speech are that she is advocating an open regulatory process that gives a variety of constituencies the opportunity to weigh in, he said, and that she wants colleges to feel free to call the civil-rights office for technical assistance without fear of instigating an investigation.

There are several difficulties with Ms. DeVos’s approach, he said. For example, due process has a different meaning at a public college, which is required to provide some procedural fairness, than at a private college where that requirement would not apply.

The secretary also called this a moral obligation, but it is very hard to address moral issues in a legal context, Mr. Hartle said. That may be especially true in situations of sexual misconduct where there is little independent evidence or outside witnesses.

‘A Caricature’ of Complaints

Scott D. Schneider, a lawyer who specializes in higher-education issues at the firm Fisher Phillips, said that Ms. DeVos had described “a caricature” of the complaints against the effects of the Obama-era guidance, “not a reflection of reality.”

For example, he said, a section of the speech talked about students’ being denied legal representation. Under the Violence Against Women Act, students are allowed an “adviser of choice,” who may be a lawyer, said Mr. Schneider, who also teaches at the Tulane University School of Law.

Natasha J. Baker, a lawyer with the firm Hirschfeld Kraemer, said the secretary had used an anecdote in which an accused student wasn’t given notice of a complaint or allowed to respond to it.

“That tells me that’s a school that needs to look at their process,” she said. “The ‘Dear Colleague’ letter didn’t mandate hiding evidence.”

Broadly, Ms. Baker said, she was troubled by “anecdotes as the basis for major policy decisions.”

Ms. Baker said the department also risked further inserting courtroom procedures into colleges’ disciplinary proceedings. “I don’t think you should transport the courtroom process into the campus process,” she said, “but I firmly believe you can design a campus procedure that is fair and has due-process protections.”

Adam Harris is a breaking-news reporter. Follow him on Twitter @AdamHSays or email him at adam.harris@chronicle.com. He reported from Arlington, Va. Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com. He reported from Washington.