What did Betsy DeVos’ September Title IX announcement change? At VCU, nothing

U.S. Education Secretary Betsy DeVos announced last September the department would rescind Obama-era guidances on campus sexual assault. But at VCU, the rollbacks have had no ramifications and Title IX cases are tried just as they were under the previous administration.

Back in September, VCU President Michael Rao responded to the department’s new guidelines on dealing with sexual assault, saying the new instructions did not change the university’s legal responsibilities.

In an interview with the CT, VCU’s Title IX Director, Laura Rugless, added context to Rao’s statement. DeVos’ guidance revoked the Obama administration’s 2011 “Dear Colleague” letter, which outlined how universities were required to try Title IX cases, but because DeVos issued an interim guidance that had not gone through a formal rulemaking process, VCU and other universities have no obligation to enforce its recommendations.

Like DeVos’ interim guidelines issued in September, the Obama Administration’s letter was not enacted following a formal rulemaking process, but a paragraph in the letter says the DOE’s Office of Civil Rights could defund universities that did not voluntarily comply — a provision not included in the latest changes by the new administration.

By not enforcing the interim guideline and revoking Obama-era guideline, the administration is opening the doors for universities to enforce Title IX using whichever standards they see fit, Rugless said.

The DOE plans to issue a new guidance through formal means, which will include a public comment period, in the future, but DeVos has not indicated when that will happen. If the interim guidance is an indication of what will eventually become law, it means the administration will enforce sweeping reforms for the adjudication of sexual assault cases on campus.  

DeVos’ guidance lets universities choose between “preponderance of the evidence” — a lower standard, which schools were required to use under the Obama Administration — or “clear and convincing” as the standard of proof when trying sexual assault cases.

VCU, which used “preponderance of the evidence” as a standard before the Obama Administration required it, continues to use it today. That policy is consistent with what the university uses for most student misconduct cases, not just sexual assault, Rugless said.   

The new document, which was issued as a Q&A, also allows schools to offer an appeals process to either both parties involved or to only the respondent in a case, a departure from the previous administration’s stance that both parties be given an opportunity to appeal a case’s outcome.

VCU will review its process for handling Title IX-related cases in 2018 as part of a three-year assessment cycle, and a steering committee will make changes where it sees fit. If the Trump Administration has issued a new guidance by the time the steering committee goes through that process, the committee will take into account the new federal guidance.

“If the federal government mandates a different, higher standard and that becomes legally required, of course we would have to follow that as a matter of compliance,” Rugless said.

While the Title IX process at VCU and other schools isn’t perfect, Rugless said, it is not in need of major overhaul, like DeVos’ speech at George Mason University last September indicated.

At Mason, DeVos said the Obama-era letter contributed to “kangaroo courts” and indicated a lack of due process was unfairly detrimental to those who are wrongfully accused of sexual assault, an approach Rugless called “potentially misguided.”  

“It does seem like … the most egregious, poorly handled cases were used to support potentially sweeping changes that may be coming,” Rugless said.

Instead, Rugless said she feels the procedure at VCU could use minor changes to streamline the process. Students will have the opportunity to chime in on what they feel those changes should be before the steering committee revises its policy this year.

Fadel Allassan, Managing Editor