DeVos’s Changes to Title IX Enforcement

Betsy DeVos barely was confirmed as Secretary of Education with Vice President Pence casting the tie-breaking vote. She knew she had to address the contentious Title IX issue. The Dear Colleague Letter of 2011 (DCL of 2011), written during the Obama administration, forced universities to adopt guidelines and procedures to deal with campus sexual misconduct. The DCL of 2011 so limited due process and other rights of the accused that over 200 lawsuits resulted. Obama’s approach was to impose the DCL of 2011 as though it were law, without following the Administrative Procedures Act (APA) process where public hearings had to be held. This shortcoming invited change by DeVos since nothing in the DCL of 2011 was law because the APA had not been followed. DeVos and her staff, in July 2017, held hearings to listen to various stakeholders. Then the Department of Education’s (DOE) Office of Civil Rights (OCR) drafted a series of temporary changes explicated in the “Q&A on Campus Sexual Misconduct” (2017). To draft policies and procedures that satisfied the various stakeholders was the challenge. What should she finally recommend as policy? How could the policy be fair to the various stakeholders when the opposing sides held such differing views? One side was concerned with reducing campus harassment and sexual violence while the other wanted to also ensure that the accused enjoyed due process. The case is decision oriented in that students are to problem solve.