Thursday, September 7, 2017

Title 9 Preview

We noted in an earlier posting that there would likely be new policy for Title 9 enforcement (sexual assault) today. Below is what is known so far:

DeVos Pushes New Approach on Title IX Enforcement

Education secretary will argue approach of Obama administration to handling campus-based sexual assault has failed, and says she will launch a public comment period before issuing federal regulations to replace guidance praised by many survivors’ advocates.

By Andrew Kreighbaum, September 7, 2017, Inside Higher Ed

ARLINGTON, Va. -- Education Secretary Betsy DeVos today will declare that an era of “rule by letter” is over and announce plans to launch a public comment period to inform new federal regulations of campus sexual assault policies.

In remarks at George Mason University’s Antonin Scalia Law School, DeVos will say that the Obama administration helped elevate public discussion of the issue of sexual assault. But the secretary will also say the current federal approach has done a disservice to survivors of sexual assault, accused students and college administrators.

She will not announce changes to current federal guidelines dealing with campus sexual assault, according to prepared remarks reviewed by Inside Higher Ed and a conversation with a senior department official. And she will not announce a change in the burden of proof required of colleges considering allegations of sexual assault.

The Obama administration issued those guidelines -- frequently referred to as the Dear Colleague letter -- in 2011, making clear to colleges and universities their obligations in preventing and handling campus-based sexual harassment and violence. While case law had previously established sexual violence as an issue of gender-based discrimination under Title IX of the Education Amendments of 1972, the 2011 letter and follow-up guidance in 2014 pushed higher ed institutions to do more to meet those obligations. The previous administration acted after women and survivors complained for years that colleges ignored or mishandled allegations of sexual assault, and that many colleges protected athletes and others who committed assaults.

While advocates for victims of assault have lauded the guidelines, they have come under attack from Republicans, who claimed executive overreach, and representatives of accused students, who said they didn’t do enough to protect due process. And some colleges have complained that the federal guidelines were both too onerous and lacking in clarity.

Over recent months, DeVos has received intense pressure from within and outside the department to rescind the Dear Colleague letter outright, officials said. But they said the secretary wanted to take a deliberative approach to potential changes. Advocates for sexual assault victims, meanwhile, have lobbied publicly and in private meetings with officials for it to be kept in place.

As reports surfaced of a planned speech by DeVos on Title IX issues this week, it was widely expected that the secretary would announce changes to current guidelines, if not rescind the Dear Colleague letter entirely. Instead, the secretary will deliver remarks that outline her objections to the current standards, largely based on failures her team has identified on college campuses. And she will argue that a public comment period, known as a notice-and-comment process, will allow the department to better incorporate insights from various stakeholders into a new regulation. That would be significant, because a regulation, as opposed to a guidance document, would have greater force in establishing the obligations of campus officials.

DeVos in her remarks calls acts of sexual misconduct “reprehensible, disgusting and unacceptable” and says they must be confronted “head-on.”

“Never again will these acts only be whispered about in closed-off counseling rooms or swept under the rug,” her prepared remarks say. “Not one more survivor will be silenced.”

She credits the previous administration for bringing the issue “into the light of day.” But DeVos will say “good intentions alone are not enough.”

“Here is what I’ve learned: the truth is that the system established by the prior administration has failed too many students,” DeVos will say. “Survivors, victims of a lack of due process and campus administrators have all told me that the current approach does a disservice to everyone involved.”

‘Failed’ System

Many advocates for victims of assault would say the current guidelines have in fact served survivors of assault and sex-based discrimination well. Having the Dear Colleague letter in hand, they say, empowered them to seek substantive improvements to their campus environments.

But DeVos will argue legal challenges to the federal guidelines from accused students have “retraumatized” victims. And she’ll point to what department officials call a “broken” relationship between the Office for Civil Rights and the colleges and universities it oversees. The secretary in her remarks will say that OCR has “run amok” and intimidated campus officials who are too nervous to ask about potential investigations to seek advice. Above everything else, she points to the stories of individual students she says have been failed by the current system to make her case that serious change is needed.

In one instance, a college student who made a sexual assault allegation against a classmate was told by her campus she would have to prosecute the case herself, DeVos says in her remarks. In another case, according to DeVos’s remarks, a college athlete who engaged in “playful roughhousing” with his girlfriend was dismissed from campus after a mistaken abuse report from a witness -- despite his girlfriend’s insistence that no abuse had occurred. Another student, at a historically black institution, was barred from his campus weeks before graduation. He only found out through a Freedom of Information Act request that he had been accused of sexual harassment, but he could get no further details about the suspension.

“It is no wonder so many call these proceedings ‘kangaroo courts,’” DeVos will say in her remarks. “Washington’s push to require schools to establish these quasi-legal structures to address sexual misconduct comes up short for far too many students.”

In each of those cases, DeVos cites a failure on the part of campus administrators themselves and not any requirements in the Dear Colleague letter. Survivor advocates who champion those guidelines will be quick to point out that the stories recounted by DeVos involved college administrators ignoring the rights of accused students and victims alike. And the department’s Office for Civil Rights exists precisely to hold institutions accountable when they fail to uphold those rights, advocates argue.

Indeed, advocates would say the 2011 DCL and subsequent guidance make clear that the same opportunities should be afforded to both parties involved in campus-based proceedings.
But the secretary and her team believe insufficient due process protections have led schools to establish procedures that do not incorporate proper standards for fairness, a senior official at the department said. In her remarks, DeVos argues that through “intimidation and coercion,” the Office for Civil Rights has pushed campus officials to overreach in their response to allegations.

“Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students,” she will say today.

DeVos cited those stories of individual failures from input the department has received over several months from letters, individual conversations and forums like a July Title IX summit involving survivors, lawyers, advocates for accused students, and university officials. Even as the department has consulted a wide range of voices, however, it has encountered skepticism from some high-profile advocacy groups who have doubted the secretary’s commitment to protections against sexual assault.

The involvement of groups accused of minimizing the problems of sexual assault and domestic abuse -- and some deemed “men’s rights” organizations by advocates -- created negative headlines for DeVos and the department before the long-planned Title IX summit had even happened. In an interview with The New York Times before the event, Acting Assistant Secretary for Civil Rights Candice Jackson suggested that 90 percent of campus assault allegations are a result of regrets over sex or both parties being intoxicated. The comments created an immense backlash and have continued to dog Jackson, whom Democrats demanded DeVos fire.

But officials at the department insist that DeVos doesn’t believe institutions should get a pass or that sexual assault on campus isn’t a problem. And she’s committed to soliciting proper public input on a new regulation, they say...

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