Betsy DeVos and Title IX: What Has and Hasn’t Happened Yet

 In Student Conduct

Title IX and the issue of campus sexual assault continued to dominate conversations on college campuses across the nation throughout the summer. Groups representing the rights of both the victims of sexual assault and the accused remained sharply divided on what would constitute a fair and balanced approach from the Trump Administration and its Education Secretary, Betsy DeVos. Her decision to hold high-profile meetings with both sexual assault victims and accused students appeared to signal a willingness to consider all viewpoints in drafting a new policy.

What Is Title IX?

Title IX is a federal law which makes gender-based discrimination illegal at U.S. educational institutions that receive federal funds. It states the following:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Violation of Title IX can result in termination of those funds.

What Has DeVos Said About Title IX and Campus Sexual Assault?

Despite criticism from both the left and the right, the Education Secretary’s public statements about the Department’s review of Obama-era policies have not yet signaled any radical departure from current practice. Although she has indicated her intention to replace those policies, she has not suggested that the Department will relax its enforcement of the law. Among her more important statements were the following:

  • Her review will include “a transparent notice-and-comment” process to “incorporate the insights of all parties.” This, according to Harvard Law Professor Jeannie Suk Gersen, is standard legal process for agencies making binding legal rules.
  • She has been critical of the Obama Administration’s decision in 2011 to send colleges and universities a “dear colleague” letter instructing them on methods of enforcement, writing, “Rather than engage the public on controversial issues, the Department’s Office for Civil Rights has issued letters from the desks of un-elected and un-accountable political appointees.”
  • While insisting on rigorous enforcement in cases of campus sexual assault, DeVos has noted that previous enforcement efforts have failed regarding due process, and noted that schools discriminate both when they fail to take seriously a student’s report of sexual misconduct and when they are biased toward finding a student responsible of that misconduct.

Final Thoughts

Although it’s not clear at this point what the results of DeVos’s review will be or what new policies she will implement, her statements on the subject do not suggest a radical departure from previous practice. As Gersen notes:

“Judging by DeVos’s speech, what has been portrayed as a rollback of Title IX is really an embrace of a framework of compatibility: one in which Title IX seriously addresses sexual violence and also requires fairness to the accuser and the accused.”

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