DeVos to Replace Obama-Era Sexual Assault Guidelines

Education secretary says department will replace “failed” guidance on campus sexual assault, praised by many survivors’ advocates, with temporary compliance “information” before soliciting comment and issuing new regulations.

September 8, 2017
Activists protest outside DeVos announcement

ARLINGTON, Va. -- The U.S. Department of Education said Thursday it will replace Obama-era federal guidelines on campus sexual assault, with Betsy DeVos, the education secretary, describing the guidelines as a "failed system" that has done a disservice to all sides.

DeVos, in a speech at George Mason University's Antonin Scalia Law School, announced plans to launch a public comment process that will precede the release of a new federal regulation.

The department did not say how or when the current guidelines would be replaced. But the department will issue new "information" about how colleges should handle sexual assault complaints before new rules are in place, a spokeswoman said, by making "clear to schools how to fulfill their current obligations" during the rule-making process.

Department officials had said before the speech that there were no plans to announce changes to current federal guidelines. But the spokeswoman said in an email afterward that the 2011 guidance from the Obama administration would be replaced. And in an interview with CBS Thursday evening, the secretary said, of changing federal guidelines, "it really is a process, not an event. But it is the intention to move beyond that and to go move toward a better way."

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The "interim" information could be released by the department soon, possibly as early as next week, according to a person involved in conversations within the department. It will include details on how the department's Office for Civil Rights will enforce Title IX violations until a final regulation is in place.

The Obama administration issued those guidelines -- frequently referred to as the Dear Colleague letter -- six years ago, making clear to colleges and universities their obligations in preventing and handling campus-based sexual harassment and violence. While case law had previously established sexual violence as an issue of gender-based discrimination under Title IX of the Education Amendments of 1972, the 2011 letter and follow-up guidance in 2014 pushed colleges to do more to meet those obligations. The previous administration acted after women and survivors complained for years that colleges ignored or mishandled allegations of sexual assault, and that many colleges protected athletes and others who committed assaults.

Advocates for victims of sexual assault have lauded the Obama guidelines. But they have come under attack from congressional Republicans (who call them an example of executive overreach) and representatives of accused students, who say they don’t do enough to protect due process for the accused. Some colleges also have complained that the federal guidelines were both too onerous and lacking in clarity.

DeVos has deliberated on a decision regarding the guidance for months, facing pressure from critics to rescind it outright and from advocates for sexual assault victims to keep it in place. In her speech Thursday, she didn't announce specific plans to pull the guidelines but declared that an era of "rule by letter" is over.

She said a public comment period, known as a notice-and-comment process, will allow the department to better incorporate insights from various stakeholders into a new regulation. That would be significant, because a regulation, as opposed to a guidance document, would have greater force in establishing the obligations of campus officials.

DeVos in her remarks called acts of sexual misconduct “reprehensible, disgusting and unacceptable” and said they must be confronted “head-on.”

“Never again will these acts only be whispered about in closed-off counseling rooms or swept under the rug,” she said. “Not one more survivor will be silenced.”

She credited the previous administration for bringing the issue “into the light of day.” But “good intentions alone are not enough,” DeVos said.

“Here is what I’ve learned: the truth is that the system established by the prior administration has failed too many students,” she 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.”

‘Failed’ System

Many advocates for victims of assault would say the current guidelines have in fact served survivors of assault and sex-based discrimination well. Having the Dear Colleague letter in hand, they say, empowered them to seek substantive improvements to their campus environments.

But DeVos in her speech pointed to the stories of individual students she says have been failed by the current system to make her case that serious change is needed.

In one instance, a college student who made a sexual assault allegation against a classmate was told by her campus she would have to prosecute the case herself, DeVos said. In another case, according to her remarks Thursday, a college athlete who engaged in “playful roughhousing” with his girlfriend was dismissed from campus after a mistaken abuse report from a witness -- despite his girlfriend’s insistence that no abuse had occurred. Another student, at a historically black institution, was barred from his campus weeks before graduation. He only found out through a Freedom of Information Act request that he had been accused of sexual harassment, but he could get no further details about the suspension.

“It is no wonder so many call these proceedings ‘kangaroo courts,’” DeVos said. “Washington’s push to require schools to establish these quasi-legal structures to address sexual misconduct comes up short for far too many students.”

Advocates for survivors of sexual assault said DeVos used loaded language favored by opponents of campus protections to mischaracterize what the 2011 Dear Colleague letter requires. In each of the cases the secretary cited, campus administrators failed to fulfill their obligations to students. DeVos and her team argue those failures occurred because of weak due process protections in the DCL. But Alexandra Brodsky, a fellow at the National Women's Law Center, said the practices DeVos described were expressly forbidden by the federal guidelines.

"Either the department hasn't done its homework or it is purposefully misrepresenting the current state of law for its own ideological ends. And that's a huge shame," she said. "It doesn't help anyone to roll back guidance that articulates robust rights for both survivors and accused students."

Brodsky and other advocates for survivors argue the 2011 DCL and subsequent guidance make clear that the same opportunities should be afforded to all parties involved in campus-based proceedings.

The speech was lauded by organizations that advocate for the rights of accused students on campuses. Cynthia Garrett, co-president of Families Advocating for Campus Equality, said DeVos's remarks had given hope to families whose children have faced proceedings resembling a cat-and-mouse game.

The secretary recognized, she said, that "Title IX disciplinary processes have not uncommonly devolved into an effort designed to satisfy [the department's Office for Civil Rights] rather than search for the truth."

DeVos also pointed to what department officials call a “broken” relationship between the Office for Civil Rights and the colleges and universities. The secretary said OCR has “run amok” and intimidated campus officials who are too nervous to ask about potential investigations to seek advice.

“Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students,” she said.

While she has promised a more collaborative relationship between the department and colleges, it wasn't exactly clear to many who work with those institutions what DeVos's speech means for procedures on campus.

Scott Schneider, a New Orleans lawyer who frequently works on institutional responses to sexual assault, said the government issues Dear Colleague letters to provide institutions with some degree of transparency about how it will judge whether they're in compliance with the law. The comments from DeVos so thoroughly trashed the 2011 DCL, he said, that colleges may not be comfortable consulting it in making policy decisions.

"I don't know how they could keep the Dear Colleague letter in place based on what she said," Schneider said.

Terry Hartle, senior vice president for government and public affairs at the American Council on Education, said that, for now, higher ed institutions should operate as if the current federal guidelines remain in place.

"Until the department informs institutions differently, the conservative legal choice is to assume the Obama administration guidelines remain in effect," he said.

Advocates Outraged

While DeVos has sought input from a variety of individuals and stakeholder groups through letters, individual conversations and forums like a July Title IX summit, her department has continued to encounter skepticism from advocacy groups who have doubted the secretary's commitment to protections against campus sexual assault.

The involvement of groups accused of minimizing the problems of sexual assault and domestic abuse -- and some deemed “men’s rights” organizations by advocates -- created negative headlines for DeVos and the department before the long-planned Title IX summit had even happened. In an interview with The New York Times before the event, Acting Assistant Secretary for Civil Rights Candice Jackson suggested that 90 percent of campus assault allegations are a result of regrets over sex or both parties being intoxicated. The comments created an immense backlash and have continued to dog Jackson, whom Democrats demanded DeVos fire.

Alyssa Peterson, a policy coordinator with Know Your IX, said the tone of DeVos's comments and her decision to embark on a formal, legalistic process showed she wasn't listening to survivors. Know Your IX and other groups have urged the department to undertake a listening tour, as the Obama administration did before issuing the 2011 guidance.

"The power imbalance between resourced schools and survivors is really immense," she said. "They're creating this process that will be very hard for people they claim to care about to participate in."

During Thursday's event, survivors' advocates rallied outside the law school lecture hall where DeVos gave her address, chanting, "Stop protecting rapists!" and "Stand with survivors!" as attendees of the speech filed out.

Activists from Know Your IX, the National Women’s Law Center, End Rape on Campus and other groups showed up at the Education Department Wednesday to deliver petitions with tens of thousands of signatures urging the secretary to maintain the guidelines. They were joined by elected officials including Senator Kirsten Gillibrand, a New York Democrat.

Other Democratic officials blasted the DeVos speech Thursday. Senator Patty Murray, the ranking Democrat on the Senate education committee and a top critic of the secretary on Capitol Hill, said DeVos had decided to continue a pattern of undermining survivors' rights and showed a lack of understanding or empathy for millions of students who have experienced sexual violence on campus.

"Let’s be clear: Secretary DeVos just made an open invitation to colleges to once again sweep this national epidemic under the rug, which could discourage women and men on campuses across the country from reporting sexual assault and deprive survivors of the justice they deserve," Murray said in a statement. "Colleges must continue to take campus sexual violence seriously, and I urge Secretary DeVos to reconsider this harmful step backward, and instead start supporting survivors and working to combat this national crisis."

Catherine Lhamon, the chair of the U.S. Commission on Civil Rights and a former assistant secretary for civil rights at the department, has also been a frequent critic of the secretary's handling of civil rights issues. Lhamon said DeVos's decision to pull back the Dear Colleague letter made students less safe.

"We have more than 7,000 colleges and universities in this country, and we have very wide variability across those campuses," she said. "A core goal for the Department of Education is to share information about what the law is and how to comply with it to make sure all of those institutions actually satisfy students' rights."

Input Sought by Department

Despite criticism from Democrats, department officials have said a reconsideration of federal guidelines shouldn't be a politically polarized process. And they point to efforts to seek input from faculty members with experience in law as well as university administrators and advocates for accused students. As the department has deliberated overhauling the current federal guidelines on Title IX sexual assault protections, it’s reviewed letters from law faculty critical of current guidelines as well as recommendations from task force reports addressing campus-based sexual harassment and assault.

A letter from 16 University of Pennsylvania law professors in 2015 argued the current approach from OCR “exerts improper pressure upon universities to adopt procedures that do not afford fundamental fairness.” A separate statement DeVos cited, from Harvard law faculty in 2014, argued the university had rushed to appease federal officials in developing its own sexual harassment standards.

Other law professors, although not cited by the secretary, have argued the standards were proper. University of Pittsburgh law professor Deborah Brake, a participant in the Title IX summit, has argued in defense of the “preponderance of evidence” standard, for example, and against raising standards of evidence for campus-based proceedings.

DeVos specifically cites recommendations from an American Bar Association task force as well as an American College of Trial Lawyers task force among “important perspectives” that would “be helpful as we pursue a better way.” The ABA report had encouraged campuses, where appropriate, to examine alternative models to traditional adjudication, including restorative justice, among other recommendations. The trial lawyers, meanwhile, called for raising the standard of proof for campus-based proceedings.

Another proposal cited approvingly Thursday by DeVos, from attorneys Gina Maisto Smith and Leslie Gomez, argues for the creation of regional Title IX centers to investigate and adjudicate assault and harassment investigations in the place of campus officials.

A senior department official argued that the Obama guidelines inarguably mandated new rules for colleges to comply with and should have gone through a public comment period before they were issued. A new rule-making process would address that problem and the due process concerns with the guidelines, they said.

“Those are two items we can fix,” the official said.

Peterson, of Know Your IX, said her organization and other advocacy groups will take part in the public comment process. They'll also pressure leaders of colleges and universities to maintain protections against sexual harassment and assault on campus.

"We are well practiced working under a government not concerned with our rights," she said. "We're committed to pushing colleges and universities to hold them accountable, even if the government won't."


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