Betsy DeVos and Title IX Changes

On September 22, Education Secretary Betsy DeVos made good on her claims that her department would investigate the Obama-era guidance on campus sexual assault. In an extremely brief, two-page letter, the Office of Civil Rights (ORC) under DeVos’s leadership removed the Obama era guidance, as set out in the controversial “Dear Colleague” letter of 2011. In addition, DeVos contemporaneously issued interim guidance for campus sexual assault.  As the 2017 letter makes clear, the old guidance was scrapped on the grounds that it established an unjust system for handling college sexual assault. The points of particular concern in the 2011 letter were the fact that the it lowered the necessary standard of proof for a guilty verdict, allowed appeals for not-guilty findings, discouraged cross-examination, forbade the colleges from relying on the criminal justice system to handle cases of assault, and stated that concern for the accused’s right to due process should not “unnecessarily delay“ the colleges judicial proceedings in these cases. For these reasons the 2011 “Dear Colleague” letter received strong criticism from scholars across the political spectrum. The 2017 letter is quick to remind the reader of these criticisms, quoting from, among others, the Harvard faculty’s famous open letter to the Boston Globe which stated that the Obama-era guidance “lack[ed] the most basic elements of fairness and due process, [was] overwhelmingly stacked against the accused, and [was] in no way required by Title IX law or regulation.” Despite this, DeVos’s decision to do away with the 2011 letter mandates is already being heralded as an attack on fundamental rights guaranteed through Title IX. Such heralds ought to reread Title IX. This not a Herculean task to be sure; it is only one sentence long.

Instituted in 1972 under the Education Amendments Act, Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The effect that Title IX has had on collegiate education is nearly immeasurable. In the new letter, the ORC themselves wrote of the “remarkable progress toward an educational environment free of sex discrimination” that this law has brought about. For forty-five years, Title IX has been the foundation for all laws pertaining to an American woman’s right to education, but it is just that: a foundation. While DeVos and her department have removed the structure that the Obama Administration built on top of the foundation of Title IX, they have in no way altered this foundation. Quite to the contrary, DeVos and her Department are nearly breathless from proclaiming their desire “to protect fair and equitable access to education”.

As previously stated, the 2017 letter cited five main complaints against the Obama-era guidance. The first of these complaints was that the 2011 “Dear Colleague” letter lowered the necessary standard of proof for cases of campus sexual assault. This is objectively true. In the 2011 letter it was mandated that all colleges must lower their necessary standard of proof from what had previously been required, the “clear and convincing” standard, to the “preponderance” standard. In a numeric sense, the “clear and convincing” standard denotes 75% certainty of guilt whereas the “preponderance” standard represents 50.01% certainty of guilt. The preponderance standard is the lowest standard of evidence accepted in any American court and is often referred to as the “more likely than not” standard. Though many schools expressed grievances with this extremely low standard of proof, any school that was found to be not in compliance with this new rule would have been stripped of their federal funding. All were forced to comply. In DeVos’s new interim guidance, the “clear and convincing” standard has been reinstated as an acceptable standard of evidence, but the “preponderance” standard has not been removed. It is now up to each individual college to decide which standard of evidence they would like to implement. This is the first example of the flexibility that characterizes the interim policies issued by DeVos.

The second point in the 2011 “Dear Colleague” letter that the new administration took issue with was the fact that the old guidance “insisted that schools with an appeals process allow complainants to appeal not-guilty findings.” This is again objectively true, but may be slightly misleading. In the 2011 letter it was stated that “the ORC also recommends that schools provide an appeals process. If a school provides for appeal of the findings or remedy, it must do so for both parties.” At no point in the letter were “not-guilty findings” specifically referenced. The point that DeVos’s department is most closely referencing is the fact that prior to the 2011 mandate, schools frequently either did not provide a system for appeals or, more commonly, only allowed appeals for the accused students. In DeVos’s interim guidance a school may “choose to allow appeals” for either only the responding party or for both parties. Additionally, the schools are not “encouraged” to provide a system for appeals at all. Both of these decisions are left solely at the college’s discretion, only furthering the aforementioned trend towards flexibility in the interim guidance.

The third claim that DeVos and her department made against the 2011 guidance was that it supposedly discouraged cross-examination. Again, this claim enters into a slightly gray area. Officially, the 2011 guidance did not discourage cross-examination itself, only cross-examination conducted by the parties personally. This was outlined in the 2011 “Dear Colleague” letter writing, “the ORC strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearings.” This of course contradicts an individual’s right to self-representation. The ORC under Obama justified this piece of guidance writing, “allowing an alleged perpetrator to question and alleged victim directly may be traumatic or intimidating.”  This was problematic in that it gave the appearance that the accused should be denied the right to self-representation, while those same restrictions should not be applied to the accusers. DeVos’s interim guidance has removed all of this rhetoric. It makes no reference to discouraging cross-examination by the parties personally, and states very clearly that “any process made available to one party in the adjudication procedure should be made equally available to both parties.” While the implications are very different, this does not directly contradict anything that was put out in the Obama-era guidance. Additionally, it does not dictate what these “processes” that are made available should be; those are again left up to the colleges to decide for themselves.

The fourth point of contention between the two letters was that the 2011 letter expressly forbade the reliance on the criminal justice system to handle instances of campus sexual assault. This was quite clear in the ORC’s 2011 statement in which they wrote, “the school’s Title IX investigation is different from any law-enforcement investigation, a law-enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct.” As critiqued in the new letter, this mandate did indeed force many schools to develop a structure within their administration for dealing with sexual assault that had not previously existed. The construction of these kinds of facilities within the school were extremely expensive and unpopular with schools that felt that it was outside their purview as an educational institution to have to personally address these issues. In DeVos’s interim guidance, reliance on law-enforcement to sort out these matters is not forbidden—it is not addressed at all. Even when going back to the 2001 federal guidance from the Bush administration, which for all intents and purposes, is now the reigning guidance, there is no express mention of this issue. Even with this reversion to Bush-era policy, schools are not likely to gut the vast and complex bureaucratic infrastructures for handling sexual assault that they were forced to create in 2011. This lack of statement furthers DeVos’s predominate decision in her interim guidance—leave almost every decision up to the colleges and institute almost no federal mandates.

The fifth and final grievance aired by the new administration against the 2011 “Dear Colleague” letter was that the 2011 letter encouraged schools to infringe upon their students right to due process. This has been likely the most publicized of the problems with the Obama-era guidance. The 2011 letter rather infamously wrote, “schools should ensure that steps taken to accord due process rights do not restrict or unnecessarily delay the Title IX protections.” This statement received considerable blowback from leading institutions, including Harvard and the University of Pennsylvania, who both had faculty that wrote extensively on the problems that could potentially ensue from this kind of proclamation. One of the main problems was that this statement was remarkably vague, and allowed schools to infringe upon those stated due process rights with essentially no checks. Ironically, DeVos is new interim guidance on this topic could be also termed as vague. She now only mandates that a “prompt investigation” be carried out, but there is “no fixed time frame under which a school must complete a Title IX investigation.” However, the interim guidance does give several odes to the importance of “equitable” proceedings and to the protection of due process rights. Despite this, there is once again no strong mandate directly contradicting the Obama-era guidance, and any change that would happen in that direction would be a decision made the individual college alone.

There are valid reasons why DeVos would create federal interim guidance on sexual assault that is so remarkably flexible. Namely, this guidance must be applied to schools all across the country, both large and small, public and private. It would thus be advantageous in an ideal situation for schools to choose their own policies. Unfortunately, in reality, her actions may have mixed results. In light of the problems with the 2011 “Dear Colleague” letter, it is promising start that DeVos has removed that action. Without new mandates forcing change, however, the colleges, whose systems are now completely shaped by the 2011 guidance, are unlikely to institute such change themselves. The reasons for this are twofold. First, in today’s cultural climate it would be a public relations nightmare for a school to scale back their administrative services against sexual assault. No school wants to be, or more importantly, be seen as being, soft on sexual assault. Furthermore, it is clear to everyone that this removal of the 2011 guidance has come straight from leaders in the Trump administration. Regardless of how necessary this removal was, no school will want to touch the Trump-tainted new policies with a ten-foot poll. They will only do so if absolutely forced, something that this interim guidance does not do.  We can only hope that DeVos will promptly follow her most recent actions with a much stronger list of mandated policies for the management of campus sexual assault. As it stands now, nothing is likely to change other than the written action itself.

This inertia is to be expected in most colleges across the country and will almost certainly be evident seen here at dear old Dartmouth. Fortunately, Dartmouth does have an advantage in that our current system, the one put in place after the 2011 “Dear Colleague” letter and then expanded in President Hanlon’s current plan for the college, is, or at least is perceived to be, working well. With the exception of the College’s own self-reported statistics, Dartmouth has received relatively little outside attention when it comes to the issue of sexual assault. This stands in stark contrast to many of our Ivy League peers such as Yale and Harvard. This is not to say that Dartmouth does not have a sexual assault problem—any acts of sexual violence are reprehensible. The College does seem, however, to be handling these problems with relative proficiency. Additionally, Dartmouth has received no press accusing the college of being a “police-state” school either. To date, none of the young men of Dartmouth have been wrongfully crucified on the Green over unfounded claims of sexual assault. This is certainly not true of our peer institutions that seem to almost relish the sexual assault witch-hunts they regularly put their students though. The College on the Hill has, in fact, received much praise for its administrative programs against sexual assault, foremost of which being the Dartmouth Bystander Initiative. If you do not know about DBI, you have clearly never spoken to a Dartmouth administrator for longer than thirty seconds. As the name implies, this program focuses on the responsibility to care for and about your fellow community members that is incumbent upon every Dartmouth student. This policy is no doubt strong because it plays to one of Dartmouth’s strengths – our communal spirit.