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Title IX: The Sky Is Not Falling – Yet

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U.S. Education Secretary Betsy DeVos speaks during a dinner hosted by the Washington Policy Center, Friday, Oct. 13, 2017, in Bellevue, Wash.
Ted S. Warren/AP Photo

Recently, Secretary of Education Betsy DeVos gave a much-anticipated speech concerning her approach to Title IX enforcement. Activists for various causes and groups quickly decried, or cheered, a perceived pullback of Title IX guidance (often mistakenly framed as a “repeal” of Title IX itself). But the truth is more complicated than sound bites suggesting that the Department of Education now finds sexual assault acceptable. Secretary DeVos was very clear that “one assault is too many,” and heard many voices, including my colleague Naomi Shatz, at a summit this summer.

Although the Department recently announced that it was withdrawing the 2011 Dear Colleague letter, on which many colleges and universities had relied for guidance, schools have already set their disciplinary policies and procedures for the school year. And as a practical matter, schools by and large will most likely continue their current policies for the foreseeable future. No school wants to be seen as backsliding on sexual assault. Moreover, some states have acted or may act to enshrine some or all of the 2011 Dear Colleague Letter as a requirement of state law. (Thorny questions would arise if new federal regulations end up conflicting with state laws, but for now schools are bound by any applicable state laws.) So as far as individual students and institutions are concerned, not much has changed on the ground, and the existing systems remain in place. Then why do so many think Secretary DeVos has retreated on Title IX?

The Obama Administration, in guidance published in 2011 and further clarifications in 2014, pushed schools to take strong and swift action against sexual misconduct on their campuses. Those actions created a sea change in on-campus sexual misconduct investigations and enforcement, with a sudden rush to craft new policies and procedures to hold students responsible for misconduct. However, no guidance on Title IX since 2001 has gone through the public notice and comment procedures under the Administrative Procedure Act, so stakeholders had limited opportunity to weigh in on the Department of Education’s proposals. The 2011 Dear Colleague Letter, focused as it was on the rights of survivors of sexual assault and harassment, had fairly little to say about procedural fairness for students accused of misconduct. The result has been systems that lack many elements of basic fairness found in the courts, and has led to numerous lawsuits from students claiming they have been wrongfully punished through unfair processes. This creates a situation where nobody is well served; unfair processes will not be seen as fully legitimate, are subject to attack in court, and ultimately do not protect the interests of the students concerned.

Secretary DeVos has now withdrawn the Dear Colleague Letter, but has not indicated what specifically she intends to replace it with. She stated that she was going to open up a public comment period and pass Title IX guidance through the normal administrative process. (Any such guidance would be legally binding, with the force of law, whereas the Obama-era guidance was much more ambiguous in its enforceability.) That process is very slow at any agency, and will probably take months to years to reach a result. In the meantime, the Department has issued a brief question-and-answer document expressing greater concern for a fair process but also a desire for schools to be able to deal with sexual misconduct in the same processes, and with the same standards, as other disciplinary infractions. Specific items that will contribute to basic fairness include an expectation that an accused student will be informed of the specifics of an allegation before being asked to respond to it; that students should not be precluded through “gag orders” from uncovering relevant information from other students; and that interim measures such as class adjustments should be available to all parties dealing with the stress and strain of a Title IX investigation. This interim document draws closely on the 2001 sexual harassment guidance and more recent regulations related to the Clery Act, both of which went through the formal regulatory process and therefore are legally binding.

While this new statement from the Department has positive elements, it is far from final and much remains to be spelled out. There is no guarantee what form the final guidance may take. The first lawsuit on this issue of what will undoubtedly be many is being filed against the Department of Education, by the advocacy group Equal Means Equal. Whatever the outcome of this initial challenge to the interim guidance, the rulemaking process is likely to be contentious and any final rules will surely be reviewed in court. But overall, this is an opportunity to make things better for both accused students and those who have suffered from sexual misconduct.

Although some see this as an issue of victims vs. rapists, or men vs. women, the situation is more complex than that, as my colleague Naomi Shatz has pointed out in the Huffington Post. Schools can take action to prevent and punish sexual misconduct in ways that are fair, transparent, and respect the rights of all students. Groups like the American Bar Association and the American College of Trial Lawyers have issued reports and recommendations on this topic, and many people and groups have valuable perspectives and contributions that should be heard in the administrative process. If federal law imposes requirements on schools to take action against sexual misconduct, it can also require that schools deal fairly with their students. I look forward to an opportunity for all to contribute to the regulatory process ahead.

David A. Russcol is an attorney at Zalkind Duncan and Bernstein LLP in Boston. He represents both complainants and respondents in student disciplinary matters, and practices criminal defense and employment law.

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