In an address at George Mason University on September 7, 2017, Secretary of Education Betsy DeVos announced that the U.S. Department of Education (the “Department”) and its Office for Civil Rights (“OCR”) will initiate a process to formally revise the Department’s current Title IX guidance and enforcement policies. Secretary DeVos indicated that the Department will undertake a notice and comment rulemaking process but did not provide details regarding the timeline for comment submissions or the structure of any proposed rule. A full transcript of the Secretary’s remarks may be found here.
In April 2011, the Department issued a Dear Colleague Letter (“DCL”) that expanded prior policy guidance regarding Title IX’s prohibition on sex-based discrimination in education programs receiving federal financial assistance. Among other things, the DCL established specific procedural and evidentiary standards that schools are required to apply when evaluating claims of sexual misconduct. Since then, OCR has continued to issue sub-regulatory guidance letters to institutions concerning their internal processes for resolving complaints of sexual harassment, assault, or other discriminatory misconduct. (The April 2011 DCL is available here.)
Declaring that “the era of rule by letter is over,” Secretary DeVos expressed concern about the effect of such “quasi-legal structures” and asserted the value of a formal and unified regulatory approach to sexual assault and harassment allegations in educational settings. She emphasized a need for all parties to receive notice and an opportunity to be heard, stating that “one person denied due process is too many.”
While recognizing the profound negative impacts of sexual misconduct, the Secretary also observed that enforcing ambiguous or excessively broad definitions of assault and harassment harms both students and institutions. “In order to ensure that America’s schools employ clear, equitable, just, and fair procedures that inspire trust and confidence,” she said, the Department “will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way.”