Editorial: DeVos upholds basic rights in Title IX rule
U.S. Education Secretary Betsy DeVos last week released the department’s final reforms governing campus sexual misconduct investigations. The revisions have been years in the making, and they are arguably the most important — and lasting — mark of DeVos' tenure.
In prepared remarks Wednesday, DeVos clearly explained the rationale behind the new rule: “Today, we announce a final rule that recognizes we can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process.”
That’s what these reforms are all about. Despite the hysterical and predictable response from DeVos’ detractors, the changes to these guidelines are not rooted in politics. Rather, they seek to uphold these basic constitutional rights on college campuses.
During the Obama administration, the Education Department’s Office for Civil Rights (tasked with enforcing Title IX, the law banning sex discrimination at schools receiving federal money) issued a “Dear Colleague” letter and supporting documents to universities alerting them that they must lower the bar for determining guilt in sexual misconduct cases.
If college administrators didn’t comply, their federal funding could be cut.
DeVos has seen the problems with the former Title IX framework since she took office in 2017, and promised to work on ensuring due process for all students.
And it’s not just the Education Department pushing for these changes. The courts have also started demanding it, as more students accused of wrongdoing (usually young men) sued their universities after they got kicked off campus without getting a fair hearing.
Unlike the Obama administration, DeVos’ team tackled these reforms through the formal federal rule-making process. The revised guidelines were publicly posted in November 2018 and the public had the opportunity to comment. The department got more than 124,000 responses, responded to them and made changes based on concerns from victim advocates.
“This new Title IX regulation reflects Secretary DeVos’ commitment to ensuring that every survivor’s claim of sexual misconduct is taken seriously, and every person accused knows that guilt is not predetermined,” the department stated.
A few key provisions in the new rule, according to the Education Department:
►It defines sexual harassment "to include sexual assault, dating violence, domestic violence and stalking as unlawful discrimination on the basis of sex."
►It provides a "consistent, legally sound framework on which survivors, the accused and schools can rely."
►It holds colleges "responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities."
►It upholds all "students’ right to written notice of allegations, the right to an adviser, and the right to submit cross-examine and challenge evidence at a live hearing."
►It requires schools to "select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard — and to apply the selected standard evenly to proceedings for all students and employees, including faculty."
KC Johnson, a professor of history at Brooklyn College and an expert on campus sexual assault investigations, says the new framework is “really quite an impressive document.” He says it balances key due process provisions, such as requiring cross-examination in misconduct hearings, while also protecting the rights of accusers.
Legal challenges are expected, and some universities may try to avoid implementing the new guidelines. That resistance is rampant among higher ed institutions already, but Johnson says universities will now have to explain to the courts why they are defying federal authority if they refuse to follow the Title IX rules.
We commend DeVos and her team for taking the time to do this right — and for restoring constitutional protections to college campuses.