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Secretary DeVos’s September 7, 2017 Remarks on Title IX Enforcement Extol Equity and Transparency, Raise New Questions

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September 8, 2017

By Karen Courtheoux and Katelan Little

Secretary of Education Betsy DeVos’s hotly anticipated remarks on the future of Title IX enforcement, given yesterday at George Mason University, announced the intention of the Department of Education to overhaul the way it addresses sexual misconduct on college and university campuses.  Echoing statements made earlier this summer by Candice Jackson, who leads the Department’s Office of Civil Rights (“OCR”), DeVos cited a “better way,” stressing the primacy of “a clear, equitable, just, and fair process.”  But DeVos’s remarks shed little light on just what the OCR’s recommended or required process will be. While her remarks were largely focused on sexual misconduct on college and university campuses, any changes to OCR processes would likely impact K-12 schools as well.

DeVos praised the prior administration for focusing attention on the issue of campus sexual misconduct but highlighted what she described as several shortcomings.  These include what DeVos cited as a lack of consistency in the application of due process, a lack of trust between the OCR and institutions, and the implication that the current approach obligated those involved to play roles outside of their competencies.  DeVos offered only a few specific ideas for addressing these issues, such as the possibility of developing a more precise definition of sexual misconduct and of creating a system of regional centers, where professionally-trained experts would handle Title IX investigations and adjudications. 

DeVos raised particular concern about the manner in which the prior administration issued guidance, stating: “The era of rule by letter is over.”  Here, DeVos seemed to refer to the OCR’s use of “Dear Colleague Letters,” rather than formal administrative rulemaking procedures, to issue guidance.  By contrast, DeVos promised a “transparent notice and comment process,” though she declined to provide a timeline for any proposed rulemaking by the Department.  DeVos proposed to consider ideas from the public and from outside organizations in formulating the new policy. 

Until we receive further guidance, and in light of Secretary DeVos’s emphasis on due process and the equitable treatment of all parties, we recommend that institutions continue to apply their procedures in a way that is fair and equitable for both survivors and accused students.

DeVos’s full remarks are available here.  We will continue to provide up-to-date information on the Department’s efforts in the areas of Title IX enforcement and campus sexual misconduct. 

             

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