Yesterday, in a speech that we suspect was secretly cheered by every university general counsel in the country, Education Secretary Betsy DeVos signaled that the era of wild Title IX over-enforcement is about to come to and end.
This is extraordinarily good and long-overdue news for anyone who cares about due process on college campuses.
The over-enforcement era started in April 2011, when the Education Department issued a “Dear Colleague Letter” to schools telling them how it would evaluate their handling of sexual misconduct allegations on campus.
Since then, the department has essentially required college administrators — few of whom have any legal training — to be police, lawyer, judge, jury and often executioner for both sides whenever an allegation of sexual misconduct is raised.
Unsurprisingly, schools aren’t very good at this.
They err often. And given the enforcement regime under the previous administration, usually in favor of the accusers, not the accused.
DeVos’s speech signaled a major departure from this trend, but not in the way that many of her critics were likely expecting.
Given the shocking amount of vitriol that has been routinely directed at DeVos — whom many consider to be the most reviled member of President Trump’s Cabinet — her critics likely thought that she would give a speech that throat-cleared with a nod to accusers then proceeded quickly to arid notions of due process.
The speech, however, was anything but that.
It was strikingly compassionate and will be hard for even her most ardent opponents to caricature, although they have already begun to criticize it. Her prepared remarks used the word “survivor” — a shibboleth in the victims’ rights movement — no fewer than 16 times.
That is three more times than the word “accused” appeared, even when used as a verb.
DeVos outlined both what has gone wrong with the Obama-era approach and gave a few hints about how we might fix it.
Her compassion for both those who have been affected by sexual violence, and those who have had their lives shattered by a false complaint, was moving and inspiring.
As lawyers who have represented scores of students in campus sexual misconduct proceedings across the country, we applaud the secretary’s careful, evenhanded, and sympathetic approach to a very difficult problem.
DeVos did not give a detailed plan for what she proposes. She did say that the department’s next step will be to do what the Obama administration should have done: Open the federal regulations regarding campus sexual misconduct to “notice and comment” — basically, they will tell the public what they propose to do and give those affected an opportunity to comment on that proposal.
Last year, we sued the department to have the prior regulations disregarded because they weren’t subject to notice and comment. The secretary is right to follow the law with these proposals.
It isn’t yet clear, however, what people will be noticing then commenting on. DeVos praised recent proposals issued by the American Bar Association, the American College of Trial Lawyers and by two private lawyers who often represent schools, but she didn’t say which options they would pick and what the rules might look like.
There are very interesting things about all of those proposals, and we suspect that if done right, all of them have the potential to strike the right balance between respecting the due-process rights of the accused and the individual needs of the accusers.
It’s also heartening to see that the proposals she’s considering reaffirm our nation’s centuries-old commitment to procedures that resolve factual disputes by giving both sides a fair hearing.
And there is still more uncertainty about the speech. As of today, no one knows not only what the law is going to be — they also don’t know what it is right now.
The 2011 Dear Colleague Letter is gone; that much is clear. What isn’t clear is what will replace it as the notice-and-comment process marches on.
It seems reasonable to expect that, in the next few weeks, the Office for Civil Rights will formally withdraw the letter and issue interim guidance on which schools can safely rely in the meantime.
Anything short of that would further compound the problem that the secretary is trying to solve — mainly, giving both schools and interested parties a clear sense of what their obligations are.
In the end, champions of due process should cheer Secretary DeVos’s speech, and those who want to “start by believing” accusers — a common refrain — should also be cautiously optimistic that the Education Department will strike a sensitive and careful balance between the rights of the accused and the needs of the accuser.
We never expected to praise the Trump administration’s commitment to the rule of law, but Secretary DeVos’s speech has made us do just that — and she has done it in a strikingly thoughtful and sensitive way.