In her farewell letter to the Department of Education, outgoing Education Secretary Betsy DeVos defended due process and urged the agency not to fall back on the unfair Title IX practices of the previous administration.
DeVos was able to finalize new regulations regarding how schools adjudicate allegations of sexual harassment and sexual assault. The regulations made the process fairer by providing basic due process rights to accused students (like the right to know the exact allegations against them, to have access to the evidence against them, and be able to cross-examine that evidence and witnesses). Activists filed multiple lawsuits against the new regulations and repeatedly lost in court.
The regulations held up because DeVos followed proper procedure to enact them, unlike the Obama administration, which ignored that procedure when it released its 2011 “Dear Colleague Letter” and follow-up guidelines that encouraged schools to find more students responsible while discouraging due process and fairness.
“This rule strengthens protections for survivors of sexual misconduct and restores due process to ensure that all students can pursue an education free from sexual discrimination,” DeVos wrote. “The regulation, which carries the force of law, holds schools accountable for responding equitably and promptly to sexual misconduct, and ensures a more fair and reliable adjudication process. The regulation provides a consistent, legally sound framework on which survivors, the accused, and schools can rely; protects K-12 students by requiring elementary and secondary schools to promptly respond to a notice of sexual harassment; and restores fairness on campuses by upholding all students’ rights.”
DeVos then urged career Education Department employees to maintain the rules she enacted instead of returning to a day when due process was seen as anathema to justice.
“You should reject and efforts to undercut this important rule for survivors,” she wrote. “A wide array of voices, from liberal academics to civil libertarians to multiple U.S. appellate courts, have all opined on the imperative for due process not just for accused parties, but for survivors as well. Do not lose sight of the fact that the non-regulatory guidance around Title IX led to hundreds of legal challenges that went against the alleged victims of sexual assault because of the lack of fair due process. If we are going to sustainably ensure that no one suffers discrimination and sexual assault, we need to protect the balanced Title IX final rule.”
Activists claimed due process hurt accusers because it forced them to face the men they accused, suggesting women on campus should be allowed to simply make an accusation and get any man thrown off campus. The definition of sexual assault was also broadened under the Obama administration, ensuring more accusations from women who were not truly victims.
The DeVos rules were a step in the right direction toward bringing sanity to college campuses, yet incoming President Joe Biden has said he would overturn them, implying he would do so without using the proper channels.