Betsy DeVos and “the letter”: The path to Title IX reform

On April 4, 2011, VCU President Michael Rao, along with his counterparts at the country’s more than 7,000 universities which get federal funding, received a letter signed by the President of the United States, Barack Obama.

“Dear Colleague,” it read. “The U.S. Department of Education and its Office for Civil Rights believe that providing all with an educational environment free from discrimination is extremely important.”

Despite its casual presentation, the letter would change how universities and colleges around the country dealt with sexual assault cases on campus.

The administration’s new guidance sought to hold universities to account for how they handle sexual assault cases under Title IX, one of the U.S. Education Amendments of 1972 forbidding discrimination on the basis of sex at any educational institution receiving federal funding.

Universities were to begin using the lowest standard of proof — a preponderance of the evidence — in dealing with sexual assault cases. Students accused of sexual assault could no longer cross-examine their accusers. In addition, universities were to allow accusers to appeal not-guilty findings and schools were given a recommended 60-day limit for adjudication.

“We are the first administration to make it clear that sexual assault is not just a crime, it can be a violation of women’s civil rights,” said Vice President Joe Biden at the University of New Hampshire the day the letter was sent.

The first sign of an effort to curtail federal regulations placed on universities came in December 2016, when former Utah Congressman and chairman of the House Committee on Oversight and Government Reform, Jason Chaffetz, sent a letter to former Virginia House of Delegates Speaker William Howell, R-Stafford, asking for estimates from each university in the state of how much they were spending to comply with unfunded federal mandates from regulations like Title IX.

In a press conference with student-reporters the day news broke of Chaffetz’ request, Virginia Senator Tim Kaine said he was “concerned” for the future of Title IX because Trump, then preparing for a White House transition, had said he would do away with 70 percent of government regulations.

According to the report given to Congress at Chaffetz’ behest, VCU estimates it spent about $13 million annually to comply with more than 200 federal regulations, about $800,000 of that money for Title IX compliance.

The next sign which predicted the end of Obama-era guidelines came when Betsy DeVos, then the nominee for Secretary of Education, waffled at her confirmation hearing when asked by Washington Sen. Patty Murray whether the DOE’s Office of Civil Rights would be able to enforce Title IX as it did in the past administration.

“Senator, if confirmed, I commit that I will be looking very closely at how this has been regulated and handled, and with great sensitivity to those who are victims, and also considering perpetrators as well,” DeVos said. “But please know that I am very sensitive to this.”

DeVos squeeked through confirmation by one vote, needing Vice President Michael Pence’s vote to break a tie in the Senate. Shortly thereafter, she said it was time to reexamine the previous administration’s campus assault policies. She started that process by meeting with groups representing survivors of campus sexual assault and men’s rights groups in July.

Shortly before those meetings, DeVos’ pick to head the OCR, Candice Jackson, came under criticism when she said 90 percent of campus assault allegations were made after drunken sex or breakups — a comment she later apologized for.

“Rather, the accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right,'” she said to The New York Times.

At a speech at George Mason University in Fairfax September 7, DeVos said the “era of rule by letter is over,” signalling her intention to undo the “Dear Colleague” letter on the basis the process was unfair to those accused of sexual assault.

Last Friday, the letter was revoked, as well as the Questions and Answers on Title IX Sexual Violence from 2014 — reversing the Obama administration’s policy.

In a “Dear Colleague” letter of her own, DeVos said schools should continue to tackle the issue of campus sexual assault, but the process must be “fair and impartial, giving everyone more confidence in its outcomes.”

The DOE issued new interim guidelines for dealing with campus rape. A new Q&A was posted on the department website.

“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” Devos said.

“The VCU CR’s (College Republicans) are extremely sympathetic to those who have been victims of sexual assault, and we believe it is one of the most evil things a human can do to another,” said a spokesperson for VCU College Republicans. “However, the legislation put in place by the Obama administration is doing more damage than good.”

VCU President Michael Rao responded to the DOE’s new guidelines on dealing with sexual assault this morning, saying the new instructions do not change the university’s legal responsibilities.

In a statement, Rao said VCU “maintains its inexorable commitment to the safety, security and success of all of our people.”

Title IX training will continue to be mandatory for faculty, staff and students, Rao said. The university will also maintain policies aimed at equity as well as its grievance procedures. The statement did not make clear, however, whether the new guidelines mean the university will change anything about its approach to handling sexual assault cases.

“Together, we will continue to enhance our culture of trust and work to eliminate all forms of sexual violence on our campuses,” Rao said.