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Seeking To Restore Due Process, Betsy DeVos Issues Final Title IX Rule On Sexual Misconduct


The Education Department issued new Title IX guidelines on campus sexual assault this week, set to take effect Aug. 14. Secretary Betsy DeVos made the announcement on Wednesday, two-and-a-half years after rescinding the Obama administration’s controversial Title IX rules. As she unveiled the changes, DeVos said her policy would “strengthen Title IX protections for all students” and create “a transparent, reliable adjudication process.”

“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” the secretary said in a statement. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process.”

The Obama-era guidelines, issued in the form of a 2011 Dear Colleague letter, drew backlash from both the left and right for creating confusion on campuses nationwide, interfering with due process rights of accused students—many of whom ultimately won court cases—and setting low evidentiary standards. Feminist groups favored the Obama rule, and have staunchly opposed DeVos’s reform efforts.

Outlined in a 2,000-page document released Wednesday, the new guidelines make changes to the previous rule on multiple fronts. Schools are now required to adjudicate claims with live hearings in which alleged victims and perpetrators can be cross-examined. (With the exception of K-12 cases.) They are able to apply either the “preponderance of the evidence” or “clear and convincing” standard on their campus so long as the same standard is applied to their own employees. They are also required to investigate alleged misconduct that takes place on campus, or more broadly, within their programs and activities, like a fraternity or sorority house.

As Robby Soave notes, the guideline requires that “the final decision maker must be a different person than the investigator” in campuses’ adjudication processes, a shift from the single-investigator model. The rules apply to online harassment as well, which is of particular relevance as schools decide whether to open their doors back up this fall amid the coronavirus pandemic.

A senior department official told reporters during a Wednesday briefing that the rule uses “three buckets” to define sexual harassment: quid pro quo harassment, sex crimes, and unwelcome conduct of sexual nature. Describing the third as a “catch-all” category, the official said it includes “any unwelcome conduct of a sexual nature, determined by a reasonable person to be so severe, pervasive, and objectively offensive, that it effectively denies the person equal educational access.” That narrows the definition from the Obama-era outline, which was simply “any unwelcome conduct of a sexual nature.”

DeVos anticipated backlash on a Wednesday press call, having received plenty of it for her Title IX reform efforts since 2017. “I know many will unfortunately offer you scare quotes and half-truths in attempts to undercut this rule,” she acknowledged, encouraging journalists to read the “plain text” of the guidelines, which she argued any “objective” analysis would determine to be fair.

The Obama rule, DeVos said, “simply was not working.” The secretary described the guidelines she rescinded as “a failed approach” that created “kangaroo courts.”

“When I came into office, I knew from the beginning that this was an issue we were going to have to address,” DeVos recalled.

The final rule was issued after the Education Department pored over more than 124,000 public comments, which officials noted led the changes in the new guidelines. According to a department official, one such change is that “In K-12, notice to any school employee puts the school on notice and the school must respond.”

“In higher ed.,” they added, “notice to the Title IX coordinator or to any official with authority to take corrective measures, is what puts the school on the hook for a response. And that allows institutions of higher education to allow some of their employees to be confidential resources for college students to discuss or disclose sexual harassment, without automatically triggering a mandatory report to the Title IX office.”

The changes are significant, codifying procedures across the broad range of sexual misconduct investigations under Title IX. “Students who are subjected to sexual misconduct deserve deliberate and decisive action that carries the force of law,” DeVos insisted.