HIGHLIGHTS:

  • Secretary of Education Betsy DeVos has advised that the U.S. Department of Education intends to revise its guidance on the application of Title IX to reports of sexual misconduct on college and university campuses.
  • DeVos announced that the Department will open a notice-and-comment process to seek public feedback, institutional knowledge, professional expertise and the experiences of students on ways to improve the process of responding to sexual misconduct.
  • The Department subsequently indicated that certain Obama-era guidance would be pulled back and interim guidance provided pending the notice-and-comment period.

Secretary of Education Betsy DeVos gave a speech on Sept. 7, 2017, at George Mason University that was described by the U.S. Department of Education as "Remarks on Title IX Enforcement." In her speech, DeVos reaffirmed that colleges and universities have a responsibility under Title IX to protect students from sexual misconduct, but after speaking to various stakeholders, she concluded that the current system is failing too many students.

DeVos offered several examples of how the current Office for Civil Rights (OCR) guidance has in her view resulted in a "failed system" and "weaponized" the OCR. Although she never mentioned any specific guidance, it was clear (and subsequently confirmed by the Department's spokesperson) that she was focused on the "2011 Dear Colleague Letter" on sexual violence – and likely the related "Questions and Answers on Title IX and Sexual Violence" document that was published in 2014. DeVos emphasized that institutions responding to reports of sexual misconduct must account for the due process rights of both the accuser and the accused, and she questioned whether OCR should be mandating the use of the preponderance of evidence standard to evaluate whether a student has violated a sexual misconduct policy.

To address these concerns, DeVos announced that the Department of Education will launch a "notice-and comment process" to review the issue of sexual misconduct on college and university campuses. During this period, relevant stakeholders, including colleges and universities, students and members of the public will have an opportunity to offer feedback on the current guidance and strategies for compliance with Title IX. We anticipate that additional details about the "notice-and comment process" will be released in the near future.

For now, the Department's Title IX regulations and guidance remain unchanged, but we expect to hear shortly about which guidance documents will be rescinded and what, if any, interim guidance will be published.