Just Like Obama Did?

As advocates for survivors of sexual assault await more information on the Department of Education’s new approach to sexual misconduct on campus, they’re raising concerns that Secretary Betsy DeVos and her team are doing exactly what they slammed the Obama administration for: making new policy without sufficiently consulting the public.

The department is widely expected to issue as soon as today new instructions spelling out how colleges and universities should comply with Title IX of the Education Amendments of 1972 after DeVos indicated she would rescind 2011 guidelines issued by the Obama administration.

Those instructions to campuses are expected be issued on an interim basis until a federal regulation is produced via a formal comment period. DeVos has argued that a formal comment period should have preceded the 2011 federal guidelines that have become a focus of debate over federal policy on campus assaults. She promised in a speech earlier this month to end “rule by letter” while blasting the current approach as a failed system.

And the department has avoided using the word “guidance” to refer to the promised interim instructions, saying instead that it would "make clear to schools how to fulfill their current obligations under Title IX" after the 2011 guidance is rescinded. But advocates see more than a little hypocrisy in DeVos shifting federal policy without more robust public engagement.

“The irony is very strong. And there is a lot of frustration,” said Laura Dunn, executive director and founder of SurvJustice.

As they wait for more details on what steps the department will take, many advocacy groups have offered concerns about the openness of the process for altering federal policy.

“It appears that they intend to go about doing exactly what they’re complaining the prior administration did, which means for them it’s not a procedural issue,” said Jess Davidson, the managing director of End Rape on Campus.

DeVos met with assault survivors as well as a separate group of students falsely accused of sexual misconduct in a day of listening sessions in July. While their roles were limited in meetings, advocacy groups accompanied both groups of students. A third meeting that day involved college leaders and lawyers working on Title IX policy before DeVos took questions from the press.

Some phone calls and meetings followed with groups not involved in the July listening sessions. But no other public forums have followed other than the secretary’s speech last month. And many advocates have been frustrated in attempts to reach the department with input.

DeVos has critiqued the Obama administration’s 2011 guidelines, known as the Dear Colleague letter, as containing insufficient due-process protections for accused students. And she has said they were issued without enough input from affected groups. Congressional Republicans, including Oklahoma Senator James Lankford, have also accused the previous administration of essentially engaging in rule making -- which requires a formal comment process -- by issuing guidance.

Proponents of the guidelines have challenged both arguments from DeVos. They say the Dear Colleague letter, for example, came after a national tour with visits to 12 campuses that included meetings with students and parents as well as college administrators. Advocates have called for DeVos to undertake a similar tour to hear from students and others affected by policy changes.

While the details of any interim instructions are unknown, advocates are concerned about a significant shift in policy without comparable engagement.

A department spokeswoman, Liz Hill, said new mandates will not be issued outside of a notice and comment process DeVos announced earlier this month.

“The department is also committed to providing clarity to schools regarding their responsibilities under the law when addressing sexual misconduct as rule making takes place,” she said in an email.

The interim instructions awaited by advocates -- as well as colleges, universities and critics of current federal policy -- could potentially address a handful of specific issues in the current guidelines that DeVos has said she will rescind. Among the frequently discussed aspects of the guidelines are the standard of evidence used in campus-based proceedings and certain due-process issues, like the ability to question the other party in those cases. If those items aren’t addressed in interim instructions, they will likely be taken up in the rule-making process.

The 2011 guidance from the Obama administration directed campuses to use a preponderance of evidence standard for adjudicating cases of sexual misconduct. Most colleges didn't state a clear standard before the guidance was issued but a majority of those who did used the preponderance standard, which aligns with those for findings of other civil rights violations.

While some conservatives have argued for using a higher “clear and convincing” standard for campus proceedings, that would also be contrary to signals from the department that it wants fewer mandates. This week a bipartisan group of 10 lawmakers sent a letter to DeVos urging her to maintain the preponderance of evidence standard.

DeVos’s speech on federal guidance this month argued that current guidance was inadequate and even harmful to fair processes on campus. She argued that a notice-and-comment period would allow the department to incorporate insights from all affected stakeholders. The department only afterward confirmed that she would rescind the Obama guidelines but without additional details on instructions to colleges in the interim.

Others involved in Title IX issues say the secretary has made clear in her public remarks other areas where some change is likely to be made. Kimberly Lau, a lawyer at Warshaw Burstein LLP who participated in the July meetings on Title IX policy, said one of those areas highlighted in DeVos’s remarks is the definition of what constitutes sexual misconduct.

The department has made clear, she said, that current guidelines will be changed and that the public will have an opportunity to weigh in through the formal process called notice and comment.

“I think that everyone’s pretty anxious -- rightfully so. They want some clarity and they want some specifics,” Lau said. “The administration has been pretty careful at this point to not say what is coming, but it's clear something is.”

But advocates are skeptical that DeVos will take their input seriously. They say thousands of comments have already been submitted on Title IX through one public comment period on federal regulation that ended this week -- the overwhelming majority of them in support of maintaining existing guidelines.

And some, like Dunn, view DeVos's remarks trashing the current federal guidance as potentially discouraging reporting by assault victims, despite the secretary’s statements that assault must be confronted “head-on.”

Dunn served on the American Bar Association task force whose recommendations were among those cited by DeVos earlier this month as potential solutions to ongoing controversies over Title IX policy. SurvJustice is among several groups that have met separately with Acting Assistant Secretary for Civil Rights Candice Jackson. But Dunn said one day with the secretary is not enough after several years of putting current policy into effect.

Others say the department may find itself in a bind after so stridently criticizing federal guidance as a tool to regulate civil rights practices.

“They’re learning very quickly that guidance is an integral part of administering some of our laws and particularly civil rights law. And guidance is an important tool for answering questions for schools,” said Anne Hedgepeth, vice president for public policy and government relations at the American Association of University Women.

Peter Lake, law professor at Stetson University, said DeVos’s announcement that she would craft a new regulation after a public comment process could be seen as a victory for purists of the Administrative Procedure Act, the law that governs how federal agencies craft and issue regulations.

“DeVos is saying if a hammer is going to come down on you, it's going to come through a clear rule that’s created through the APA process,” he said.

But even with a clearly stated regulation in place, he said, the department will find it difficult to avoid issuing more guidance in the future. Federal agencies always use some combination of rules, guidance and resolution agreements to make clear how institutions should act, Lake said.

“It's somewhat inevitable,” he said. “When you get new regulation, there will almost automatically be a cry for guidance documents.”