The Trump administration has finally provided more information about the much-anticipated roll-back of Title IX enforcement. In a strongly-worded speech, U.S. Secretary of Education Betsy DeVos announced on September 7th that the Department intends to “repeal and replace” the April 2011 Dear Colleague Letter.Though the details of the Department’s planned changes are still unclear, the tone of Secretary DeVos’s speech certainly was not. She emphasized her priority remains to enforce federal gender discrimination law and to “vigorously address” how educational institutions should prevent and adjudicate sexual misconduct allegations. However, she characterized the current approach – shaped by the 2011 Dear Colleague Letter – as doing “a disservice to everyone involved.” She emphasized the need for due process and procedural fairness for all students, but emphasized her concerns that accused students are not always provided sufficient procedural protections. She focused her criticism of the Obama era enforcement strategy as too heavy-handed, as relying too greatly upon “intimidation and coercion” of institutions, and for creating “quasi-legal structures” ill-equipped to provide appropriate procedural safeguards for all students involved.
Secretary DeVos’s speech did not provide details of impending changes, but here is what we can discern from her remarks:
- The Department has not yet formally rescinded the 2011 Dear Colleague Letter, but we can anticipate that it will do so in the near future. Following her speech, a Department spokeswoman clarified that interim guidance would be issued soon to assist schools in fulfilling their obligations under Title IX.
- The Department intends to “launch a transparent notice and comment process” to gather public feedback to inform new federal guidance regarding campuses’ responsibilities and enforcement priorities. The specifics of that process and the timing have not been announced.
- Secretary DeVos lauded organizations that have recommended substantive reforms in the past, including the American Bar Association’s Task Force on College Due Process Rights and Victim Protections and the American College of Trial Lawyers’ White Paper on Campus Sexual Assault Investigations. Reviewing the recommendations made by these organizations, some priorities that the Department may be considering include the following (although we stress that the exact details of the Department’s guidance are not known at this time):
- Expanding the range of alternatives to traditional adjudication, such as restorative justice in appropriate cases;
- Prompt and thorough notice requirements for all parties, and especially for accused students to know the details of charges against them;
- A preference for live testimony as part of an adjudicatory process, both to reduce the risks of investigator bias, and/or to provide the procedural due process protections provided by cross-examination of all witnesses;
- Disfavor for processes in which the tasks of investigation and the adjudication are done by a single person;
- Greater opportunity for students’ advisors to participate, even minimally, in adjudicatory proceedings;
- Improved selection and appointment processes for hearing boards and disciplinary decision-makers, including improved training;
- A change in the standard of proof required for a finding of responsibility – perhaps to “clear and convincing evidence,” or different standards that would be applied depending upon whether the decision about responsibility for misconduct is made by a single person or a panel.
Drummond Woodsum will continue to closely monitor communications from the Department of Education and the Office for Civil Rights. We are available to guide you as further information becomes available, in assessing best practices for addressing sexual misconduct; revising policies and processes; developing clear and appropriate communications for students and others on campus; and training. If you have questions or would like to discuss the services we offer, please contact Ann Chapman, Drummond Woodsum’s Higher Education Practice Group Leader at firstname.lastname@example.org or 1-800-727-1941, Ext. 544.