In yet another reversal of civil rights policy established under the Obama administration, on Sept. 7, 2017, Secretary of Education Betsy DeVos announced her plan to review and replace the Department of Education’s 2011 “Dear Colleague” letter, which detailed how K-12 schools and higher education institutions must handle allegations of sexual misconduct.
In an address at George Washington University, DeVos hailed the end of the “era of ‘Rule by Letter,’” referring to several Dear Colleague letters issued by the prior administration that had the effect of regulation without actually going through the regulatory process. While stating that “acts of sexual misconduct are reprehensible, disgusting, and unacceptable” and confirming the rights of survivors, she also recognized the rights of accused students, stating that they “must know that guilt is not predetermined.” She criticized the prior administration’s “failed system” of increased policing of Title IX complaints: “Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students.”
DeVos’ announcement does not immediately replace the Dear Colleague guidance; instead, the department plans to request public comment and expert input to devise and implement a replacement for it in the form of regulations, a more permanent way to address the situation. The notice and comment period likely will take at least a year and possibly considerably longer. DeVos did not address whether or when the Department of Education will rescind the previous Dear Colleague guidance before the end of the notice and comment period, nor did she provide any specific instructions regarding how schools should handle sexual misconduct complaints in the meantime. Many education law experts believe that, in the near future, the department’s Office for Civil Rights will formally rescind the previous guidance and provide additional instructions.
Although schools may be anxious to revise their Title IX policies, our lawyers advise waiting until the department formalizes its plan, so any new policy will be certain to comply with the additional instructions the department is expected to issue regarding how to handle allegations of sexual misconduct between now and the time the previous guidance is formally replaced (at the end of the notice and comment period).