Making Sense of DeVos’ Title IX Campus Sexual Violence Comments
The education secretary indicated she would listen to all sides of the campus sexual violence debate, but is she truly open to retaining the positive parts of the 2011 Dear Colleague Letter?
U.S. Department of Education Secretary Betsy DeVos announced on Thursday that her department would continue investigating ways the Office for Civil Rights (OCR) could better handle K-12 and higher education sexual violence cases. During her press conference at George Mason University’s Antonin Scalia Law School, DeVos also vowed to “launch a transparent notice and comment process to incorporate the insights of all parties in developing a better way.”
“We will seek public feedback and institutional knowledge and professional expertise and the experience of students to replace the current approach with a workable, fair and effective system,” she said.
This means that the Title IX compliance guidance outlined in the Obama administration’s 2011 Dear Colleague Letter (DCL) continues to stand, at least for now. I’m cautiously viewing this development as a step in the right direction in that DeVos appears to be taking a very measured approach and is no longer as inclined to completely rescind the 2011 DCL. This is a good thing in that the DCL has many positive attributes that should remain.
According to S. Daniel Carter, president of Safety Advisors for Educational Campuses, LLC, the overwhelming majority of the 2011 DCL’s guidance went through the notice and comments period and is the result of years of regulations, case law and more than 20 years of OCR practice under both Democratic and Republican administrations. I’m somewhat comforted in knowing that DeVos appears to be no longer willing to throw all of the baby out with the bath water.
The 2011 DCL was issued by the Obama administration after the Center for Public Integrity documented wide-spread and decades-long discrimination by schools and the criminal justice system of sexual assault victims. Most victim advocates believe the 2011 DCL was a significant step forward in addressing these injustices.
That said, according to Carter, the 2011 DCL has room for improvement.
“In order for Title IX policy to be sustainable, additional work is necessary,” Carter says. “You don’t do away with the DCL, you build on it. Protections for survivors should not go away. The clock should not be turned back on the progress that’s been made for survivors. Much of those lessons can and should be carried forward.”
Although DeVos’ decision to not rescind the 2011 DCL is a step in the right direction, there are some aspects of her press conference comments that concern me. Her comments could lead many folks to believe that most of the individuals accused of sexual assault are being treated unfairly. This simply is not the case. According to a study recently released by United Educators, most institutions of higher education are handling claims by both accusers and the accused properly, and very few cases brought by those accused of sexual assault are successful in court.
Carter also has not seen huge numbers of falsely accused individuals who’ve been unfairly punished by schools.
“But, I’ve seen firsthand where the school, for whatever reason, didn’t follow their own rules or the basic tenets of due process and they wound up having to fold when challenged,” Carter says.
This brings me to my second concern with the secretary’s comments. Despite DeVos referring to the Obama administration’s approach as “failed,” in all of the cases she referred to where the victim or accused had been treated unfairly, none of the failures in those cases were the result of the 2011 DCL requirements. The unfair treatment was due to failures by the campuses. The 2011 DCL clearly states that both the victim and accused must be treated fairly.
When the sexual violence provisions of Title IX first came to the attention of schools and universities in 2011, there were a lot of Title IX coordinators and lawyers who didn’t understand the law. As with anything new, they were bound to make mistakes… and they did.
In light of this fact, I wonder if DeVos is blaming the 2011 DCL and the previous administration for schools’ mistakes. Is she truly open to the fact that there are many positive aspects that should be retained? If anything, the secretary of education’s comments about the failures of campuses to properly handle sexual violence cases highlight the need for better training of campus Title IX coordinators and attorneys. It also highlights the need for there to be more OCR investigators or perhaps a new role created for OCR to train school and university administrators about Title IX compliance. Despite this need, OCR’s Title IX enforcement efforts are being scaled back.
Can school and university approaches to Title IX compliance improve? Probably. Did OCR under the Obama administration make mistakes? Probably, especially at the beginning of its stepped up enforcement efforts. But in this day and age of partisan politics when we want to characterize the other side as evil incarnate, DeVos sounds like she is heaping too much blame on the Obama administration and not holding campuses as accountable as she should. Will the partisan politics of today tempt her to turn a blind eye on the good parts of the 2011 DCL?
We need to set aside our partisan allegiances and build on what works rather than do away with those things because they were the ideas of the “other” side. Truth be told, the 2011 DCL contains a lot of good guidance, whether or not DeVos wants to accept that reality. Sexual assault should not be a partisan issue, and both sides need to work together to make the process better. Sexual assault victims and perpetrators deserve nothing less.
I’m encouraged by the fact that DeVos says she wants to hear from a wide variety of stakeholders on this issue. She is considering recommendations offered by the American Bar Association and American College of Trial Lawyers. Will this be a good thing? I’m not sure. I believe she understands that Title IX issues should not be handled like criminal complaints. That said, if too many lawyers and not enough victim advocates are involved, it could make the Title IX adjudication process too intimidating for sexual assault survivors.
The question here is balance. Hopefully DeVos will find it. We’ll see.
This article has been updated to correct the spelling of Betsy DeVos’ last name.