Initial Response to latest from DOE on Title IX

Today, the Secretary of Education issued a new Title IX guidance Dear Colleague Letter (DCL) and a companion Q&A document that rescinds the 2011 DCL and the 2014 Q&A guidance issued by the Department of Education during the Obama administration. This move was signaled by Secretary DeVos earlier this month when she stated that the era of “rule by letter” is over and that a review and comment process would be initiated around future Title IX guidance. In an interview with CBS following her remarks, Ms. DeVos indicated that the she intended to repeal at least part of the 2011 DCL to move campuses toward a more strict standard of evidence in sexual assault cases, though today’s guidance does not take that step.

Today’s DCL does not require campuses to alter the basic policies and principles they use currently to resolve sexual misconduct cases. While it does remove the obligation to use “preponderance of the evidence” as the standard, it does not require campuses to use a stricter standard. Campuses are under no requirement to change their current standard of evidence, and we encourage them not to in response to today’s guidance. Perhaps more concerning, though, is the removal of any timeline for case resolution. While the 60-day resolution requirement previously required may have been too short, the absence of any timeline risks leaving both survivors and accused in perpetual states of limbo awaiting adjudication. The past seven years have seen significant work on campuses across the country in developing fair and equitable process to resolve Title IX cases, a significant increase in education and prevention efforts, and an increase in services and supports for victims of sexual violence. We strongly believe that our campuses have the best interests of students in mind and that, as Terry Hartle, vice president at the American Council on Education, has said, “No school is going to go back to doing what they were doing before the 2011 guidance.”

NASPA and the Higher Education community welcome the opportunity for a review and comment process and subsequent negotiated rulemaking as ED develops new guidance. This will insure that any new guidance reflects important perspectives from campus-based student affairs professionals and Title IX staff who engage in this work every day. It would also allow for input from the victims advocate community, whose work has provided systems to support victims and survivors of sexual assault.

We also would welcome a more collaborative relationship between the Office of Civil Rights (OCR) and colleges and universities. The sentiment that colleges have an interest in “sweeping sexual assault under the rug” is not based in any evidence and belies the fact that creating fair and equitable processes related to sexual violence and creating supports for victims of sexual assault has been and always will be a prime motivation of education institutions. While there are examples of egregious behavior around sexual assault that exist, sadly often involving high-profile college athletic teams, the vast majority of campuses work hard every day to get it right. We need an OCR that will work with campuses to improve and clarify guidance, not an OCR that is determined to catch an institution doing something wrong.

As review and comment proceed, we will support keeping the preponderance of evidence standard that, as S. Daniel Carter stated in the Huffington Post, “has long been upheld by courts that have evaluated the due process protections of educational conduct proceedings which aren’t criminal proceedings”. Singling out sexual assault incidents as requiring a higher burden of proof than other civil rights serves only to silence survivors and perpetuate rape culture on our campuses.

As we move forward in future guidance, let us also not forget the brave survivors who have overcome barriers to reporting in an attempt to pursue justice. Data indicate that survivor reports of sexual assault and false accusations against student respondents do not occur at the same rate, as more than 90% of survivors do not report their experiences to the campus, while only between 2% and 8% of sexual assault reports are false. These data make a clear point: respondents are not being falsely accused at rates even approaching the underreporting of sexual assault incidents. It is clear that as the Department considers a new process, one that accounts for both the accused and victims, the context of the data and information gathered from the field is integral to selecting an appropriate set of guidelines.  

NASPA stands by the student affairs professionals and advocates who work on behalf of students every day and who have spent countless hours in extensive training to ensure that campuses are handling these cases appropriately. We hope to provide examples of best practice and tangible examples that counter Secretary DeVos’s characterization of campus proceedings as “kangaroo courts.” This is frankly insulting and undermines the efforts of higher education professionals who have worked tirelessly alongside the Department of Education to correct the few examples of flawed processes on campuses. That is, after all, the role of OCR: to address the exceptions where a process or proceeding errs too far in favoring one side or the other. To imply that such missteps are the norm on all campuses is a misrepresentation of the many professionals who have dedicated their careers to ensuring fair and equitable campus conduct proceedings.

Our national conversation around campus sexual assault has evolved greatly since the Obama administration directly addressed the culture of under-reporting on college campuses. NASPA will continue to work alongside higher education professionals to advocate for the continued protection of students who have experienced harm at our institutions and will vehemently challenge actions that would return them to silent endurance of their trauma. This work is far from over, and together, I hope we can move toward rather than against efforts to protect students on our campuses.  

For now, until the review and comment process and negotiated rulemaking results in more guidance, campuses will have to make sense of the most recent Q&A. To begin this conversation, NASPA and ASCA will host an informational webinar next week to discuss the implications of this new guidance. We hope you will tune in.

Register now for Title IX Turmoil: Initial Analysis and Next Steps After the Withdrawal of the 2011 DCL
Wednesday, September 27 | 3:00 - 4:00 pm ET | Free
co-sponsored by ASCA

Moderated by Kevin Kruger, NASPA President and Tanya L. Jachimiak, Director, Title IX Office, Wake Forest University