Co-authored by Katherine Redmond
Last Friday, Education Secretary Betsy DeVos unilaterally undermined campus sexual assault and domestic violence survivors as well as professionals dedicated to addressing the epidemic of violence against women on campuses, when she withdrew Title IX guidance issued by the Obama administration in 2011 and 2014. This detailed guidance, that came in the form of a “Dear Colleague Letter” (DCL) and a “Q&A” document, was replaced with much less detailed “interim” guidance which left more questions than answers.
For now, survivors and their schools have no clear map to navigate the process until new, formal guidance is issued after a potentially lengthy “notice and comment” phase. In the interim, we caution schools against making any sudden changes to their existing policies. Given the new school year now underway, with new policies already in place at many schools, changes would be especially disruptive.
The stated purpose of withdrawing the prior guidance was to ensure that the “due process” rights of the accused in these cases would be better protected. The irony is that in addition to better serving campus sexual assault survivors, this guidance, as we’ve previously written about, also provided for extensive procedural safeguards for the accused.
Schools who have been following all the guidance provided in the 2011 DCL would already provide for an equitable process for the accused and the complainant. The new guidance, however, incorrectly and destructively removes civil rights protections while affording rights to the accused beyond that to which they are entitled under “due process.” It is akin to affording a Neo-Nazi equal the same civil rights and standing with a Jewish student or providing equal civil rights to a member of the KKK with a student of color.
The accounts cited by accused students, as well as Secretary DeVos, justifying this action seem to involve accusations that schools are taking shortcuts rather than following the old guidance. Shortcuts to justice based on perceived political preferences (whether they be geared to the benefit of survivors or the accused), rather than what is in the law and guidance, are ultimately a path to injustice.
Yet, in a politically-driven, knee-jerk reaction, Secretary DeVos slashed the guidance and removed common sense procedural safeguards that would ensure the civil rights and protection of survivors. In fact, her unilateral move is likely to result in increased amounts of litigation as the “interim guidance” flies in the face of well established law. Thoughtfully remedying any misperceptions about the old guidance would have been a far better solution, yet the Secretary has instead opted to “throw the baby out with the bathwater.”
Schools that have instituted policies that are consistent with the 2011 DCL, including providing meaningful protections for both the accuser and accused in disciplinary cases, have no reason to suddenly change course. While the “interim” guidance is generally more deferential to the interests of the accused, the framework spelled out in the old guidance is not prohibited by it.
Survivors on college campuses continue to underreport due to a perceived threat to their security and safety, along with a belief that reporting will bring negative results. Upending school policies now would be a tremendous disservice to them. It would also be risky for a school to create policy that is based on a transitory directive this flawed and incomplete.
S. Daniel Carter and Katherine Redmond are co-founders of Safety Advisors for Educational Campuses, LLC (SAFE Campuses, LLC) which provides the higher education community high quality subject matter expertise on a broad range of campus security issues including sexual violence, alcohol and other drugs, and emergency management.