DeVos Announces Notice and Comment Process for Addressing Campus Sexual Misconduct

Secretary of Education Betsy DeVos announced today that the Department of Education will commence a notice and comment process to examine the Title IX compliance standards that govern how colleges and universities handle matters of campus sexual assault. Insisting that “the era of rule by letter is over,” DeVos refrained from announcing a new standard or rule today, but committed the agency to soliciting input from the public and interest groups.

In my opinion the Secretary’s remarks conveyed sincere concern for students who have experienced sexual misconduct, whom she referred to as “survivors,” underscoring the gravity of the problem she was discussing. Additionally, she expressed concern for the rights of students who are accused of sexual misconduct and cited examples of cases where their procedural rights have been ignored. Her concern for both types of students was heartfelt, neutral, and difficult to disagree with.

What will surely be more controversial is how the agency will fix “the system of the prior administration,” which she said, “fails too many students.” Though she did not foreshadow the specifics of any new policy, her remarks give the impression that a variety of changes are on the table. For instance, the agency appears to be considering a narrower definition of sexual misconduct, as DeVos spoke with concern about instances where universities investigated trivial or accidental comments. I also detected a tone of disdain when she spoke of the mandatory preponderance standard of evidence, which suggests that open for reconsideration as well. I was most concerned, however, about her criticism of university officials taking on an adjudicatory role. I hope this doesn’t mean that she is considering withdrawing or limiting university’s authority to adjudicate sexual misconduct like they do other disciplinary matters. But I note that as an example of the kind of public input the agency was looking for, DeVos noted and described a law enforcement model developed by criminal prosecutors. Could this mean she is contemplating allowing the criminal justice system to preempt university enforcement authority? We will have to see what specifics emerge in the conversation to come.