In a speech yesterday afternoon at George Mason University, Secretary of Education Betsy DeVos outlined the Department of Education’s intention to launch “a full, transparent notice-and-comment process to incorporate the insights of all parties in developing a better way” to handle the investigation of sexual assaults under Title IX.

In doing so, Secretary DeVos accused the Obama administration of enacting “policy by political letter”—a clear reference to the administration’s use of “Dear Colleague Letters” to promulgate significant Title IX guidance, in lieu of formal regulations. In contrast, the public notice-and-comment period referenced by Secretary DeVos will provide a formalized process for the Department to solicit and consider recommendations from higher education professionals and administrators, as well as other stakeholders.

Secretary DeVos’ remarks largely focused on the importance of an equitable process balancing the need to take sexual assault seriously with providing due process to respondents. She characterized the ideal system as one where “[e]very survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct should know that guilt is not predetermined.” Overall, the speech offered little in the way of guidance, aside from the promise of a public notice-and-comment period in the future.

Still, the speech did give some insight into the future of Title IX enforcement. Secretary DeVos praised institutions for their willingness to provide student accommodations—such as adjusting course schedules or dorm assignments and postponing exams—while a sexual assault investigation is pending. She contrasted those accommodations with actions she characterized as “punish[ing] the accused before a fair decision has been rendered”—an apparent reference to the practice of interim suspensions.

The full text of Secretary DeVos’ George Mason remarks is available on the Department’s website.

Doubling Down

Late yesterday evening, in an interview with a news outlet, Secretary DeVos confirmed that the Department intends to “revoke or rescind” the Obama administration’s guidance. Although the Department has not yet done so, Secretary DeVos said this will happen “sometime in the near future. And in the interim period during the rule-making process [the Department] will come alongside institutions to make sure they are meeting their obligations under Title IX.” When asked whether the Department will enforce the Obama-era guidance in the interim, DeVos demurred, reiterating the Department’s intent to rescind the guidance while stating: “The facts remain that schools need to take their Title IX obligation seriously.”

What This Means To You

Currently, no official action has been taken to rescind the former administration’s Dear Colleague Letters, although such action appears likely in the near future.  Nonetheless, the 2011 Dear Colleague Letter providing Guidance on Addressing Sexual Harassment/Sexual Violence remains on the Department’s website.  Given that rescission appears likely and new guidance is forthcoming, institutions may wish to refrain from significant policy or procedure changes for the time being.  We will closely monitor further announcements from the Department and will provide updates on this blog when appropriate.