DeVos Makes Title IX Legal Again

In a “Dear Colleague” letter to university administrators, the U. S. Department of Education reversed the Obama Administration’s guidance urging school officials to go above and beyond, some would say outside, the law while investigating charges of sexual harassment under Title IX laws.

“These guidance documents interpreted Title IX to impose new mandates related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct,” the new letter reads. “The 2011 Dear Colleague Letter required schools to adopt a minimal standard of proof—the preponderance-of-the-evidence standard—in administering student discipline, even though many schools had traditionally employed a higher clear-and-convincing-evidence standard.”

“The Letter insisted that schools with an appeals process allow complainants to appeal not-guilty findings, even though many schools had previously followed procedures reserving appeal for accused students. The Letter discouraged cross-examination by the parties, suggesting that to recognize a right to such cross-examination might violate Title IX. The Letter forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints, forcing schools to establish policing and judicial systems while at the same time directing schools to resolve complaints on an expedited basis. The Letter provided that any due-process protections afforded to accused students should not ‘unnecessarily delay’ resolving the charges against them.”

To those of us who have followed the Obama Administration’s machinations on Title IX, and much else, it does not come as much of a surprise that the last two Secretaries of Education skirted traditional practice, if not legal guidelines, in consulting no one when they undertook their transformation of Title IX. “The Department imposed these regulatory burdens without affording notice and the opportunity for public comment,” the new letter reads. “Under these circumstances, the Department has decided to withdraw the above-referenced guidance documents in order to develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits.”

“The Department intends to implement such a policy through a rulemaking process that responds to public comment. The Department will not rely on the withdrawn documents in its enforcement of Title IX.”