Betsy Devos restores much-needed due process to American campuses with Title IX reforms

Before she was appointed Secretary of Education by Donald Trump in 2017, I had never heard of Betsy DeVos. My Trump-loathing friends immediately dismissed her as unworthy of the role: a socially conservative billionaire’s wife with no professional experience in the educational system, and the poster girl for political cronyism.

As I soon realized, that was an unfair judgment. The highly competent and principled DeVos is no mere “wife” to anyone, and her volunteer engagement with educational reform, particularly her championship of charter schools, had been immersive and of long duration.

During a rather brutal hearing for her confirmation, Sen. Bob Casey asked DeVos whether she agreed “that the problem—and that’s an understatement in my opinion—of sexual assault on campus is a significant problem that we should take action on.” DeVos responded, refreshingly in this misandric era, that she believed “sexual assault in any form or in any place is a problem,” by implication rejecting Casey’s implication that there was a “rape culture” of epidemic proportions entrenched in campus life.

Then Sen. Casey pressed her on whether she would uphold the Education Department’s 2011 infamous “Dear Colleague letter” (DCL), which she demurred from answering unequivocally, merely asserting that she would work with members of the Senate to “find some resolutions,” adding it would be “premature” to commit one way or another.

DeVos was prudently temporizing. She knew exactly the resolution she wanted: to see that infamous letter thrown into the dustbin of history, and last week she moved the goalposts significantly in that direction. DeVos is currently enjoying a well-deserved moment of triumph, having presided over the official passage last week of the Trump administration’s promised due-process reform to campus sexual-assault cases.

Why is the 2011 DCL infamous?

In 2011, the Office of Civil Rights (OCR) of the Department of Education issued the DCL in question, presided over by then Vice-President Joe Biden, to every public and private college and university administration. It mandated—via the 1972 Title IX “equal opportunity” Act—the suspension of due process for an accused in sexual misconduct cases, with failure to do so grounds for withdrawal of federal funds.

Title IX had not been conceived with the resolution of sexual complaint cases on its radar, and many observers saw the DCL exploitation of it as illegal. But it went down well with feminist groups like the American Association of University Women (AAUW), who were delighted to see “a preponderance of the evidence,” i.e. a 50.1 per cent likelihood of guilt, replace “beyond a reasonable doubt (95 per cent certainty),” the standard in criminal court. The procedures outlined in Dear Colleague made it very difficult for an accused individual to defend himself: he could not see or present evidence, have a lawyer represent him, or confront his accuser, all routine rights in any real court.

Administrations, fearful of losing funding, but eager to demonstrate their feminist chops, not only hastened to comply with the OCR directive, they went overboard. The OCR’s understanding of “sexual misconduct” is so flexible it can mean anything from an improper word or glance to rape. Any complaint against a young man (almost invariably the accused was a man) could and did amount to show trials. One freedom of speech advocate described the OCR as “a massive, bureaucratic agency staffed with 650 lawyers … (with) one job: punish universities that don’t sufficiently police campuses for harassment and discrimination.”

The numbers confirm that description. For, according to SAVE, an organization dedicated to “leading the policy movement for fairness and due process on campus,” “since 2011, 647 lawsuits have been filed against universities, thousands of student transcripts have been permanently stamped with ‘expulsion’ or ‘suspension,’ and countless professors have been fired or censured.  There is no limit to the trauma and emotional abuse these persons have experienced.” The Department of Education reported that following release of the DCL, the number of Title IX complaints to the OCR increased nearly five-fold, from 17,724 (2000-2010) to 80,739 (2011-2020).

SAVE provides a useful timeline for organizations and events related to the pushback against the DCL (all links available on their site):

2011-2013:

• SAVE, the Foundation of Individual Rights in Education (FIRE), and the American Association of University Professors sent communications to the OCR calling for the withdrawal of its unlawful policy.
• Families Advocating for Campus Equality (FACE) was established to engage in family support, education, and advocacy.
• 293 articles and editorials were published critical of the OCR policy.

2014-2016:

• The Department of Justice reported the annual rate of sexual assault among college age females was 1/1000 women, refuting the widely disseminated one-in-five number.
• Save Our Sons was established to compile current lawsuits and educate the public about a lack of due process on colleges.
• Title IX for All was established, which offers a Database of OCR Resolution Letters and a Legal Database of lawsuits against universities.
• A group of Harvard University Law Professors issued the statement, Rethink Harvard’s Sexual Harassment Policy.
• A group of Penn Law faculty members issued their Open Letter, Sexual Assault Complaints: Protecting Complainants and the Accused Students at Universities
• The American Association of University Professors issued a report, The History, Uses, and Abuses of Title IX
• Professors from around the country issued Law Professors’ Open Letter Regarding Campus Free Speech and Sexual Assault
• SAVE sent a letter calling on Congress to Rescind and Replace the Dear Colleague Letter (April 4), issued a Special Report, “Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases;” and held meetings with staffers in 60 offices in the Senate and House of Representatives to discuss problems with the OCR policy. Over subsequent years, SAVE representatives would hold over 1,000 meetings with legislative staffers.
• 2,239 articles and editorials were published critical of the OCR policy.

2017-2019:

• Five national organizations issued reports critical of the 2011 OCR policy:
• SAVE: Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade
• American College of Trial Lawyers: Position Statement Regarding Campus Sexual Assault Investigations
• American Bar Association Task Force for Promoting Fairness in Campus Sexual Misconduct Cases
• Heritage Foundation: Campus Sexual Assault: Understanding the Problem and How to Fix It
• National Association of Scholars: OCR’s New Sexual Harassment Guidelines Threaten Academic Freedom, Due Process
• SAVE launched its State Legislative Initiative to prevent the passage of state-level laws that aimed to codify policies based on the Dear Colleague Letter.
• On September 22, 2017, the Office for Civil Rights announced its withdrawal of the 2011 Dear Colleague Letter and its 2014 Questions and Answers on Title IX and Sexual Violence. The same day, the OCR released a new Q and A on Campus Sexual Misconduct guidance document.
• On November 29, 2018, the Department of Education released its proposed Title IX regulation.

2020:

• On May 6, 2020 the Department of Education issued its final rule.
• Four lawsuits were filed opposing the Rule, and amicus briefs were filed by SAVE, FACE, and FIRE.
• Attorneys General lawsuit (Request for Preliminary Injunction denied on 8/12/20)
• ACLU lawsuit (Pending)
• National Women’s Law Center lawsuit (Pending)
• State of New York lawsuit (Request for Preliminary Injunction denied on 8/9/20)

The new rule defines requires schools to set up grievance processes for handling complaints of a sexual nature.  From now on, the colleges must allow both accuser and accused to choose advisors who can cross-examine witnesses. Both are to receive notices of allegations and are given the same right of appeal.

As noted on the SAVE timeline, New York Attorney-General Letitia James immediately sued for a preliminary injunction to halt its application. But Judge John Koetl denied it, stating the rule would benefit both accuser and accused, because “they are given greater assurance that if they prevail in the grievance proceeding, that result will not be overturned because the process did not comply with due process.” Federal Judge Carl Nichols deferred to the same argument against a challenge to the new rule brought by seventeen state attorneys.

DeVos’s rule stands on firm legal ground because, in her administration’s creation of the new rule, legal procedures set down by the Administrative Procedure Act (APA) were followed, procedures that Biden and his team had sidestepped. Most egregiously, the Obama administration chose to eschew public content as demanded by the APA. The Trump administration reviewed nearly 125,000 comments before making its rule final.

DeVos’s apparent victory cannot be considered secure at this point, because the timing is precarious. If the Democrats win the White House and the Congress, the rule might be vulnerable to reversal by the Congressional Review Act. If that were to happen, it would be a terrible blow to the principles—still cherished by a majority of Americans—of equality under the law and due process for all.