Defying Betsy DeVos
Not to be overshadowed by their students, administrators at several universities are apparently launching their own protest movement. Secretary Betsy DeVos recently rescinded the Department of Education’s flawed 2011 Title IX guidance, issuing an interim directive on how colleges and universities should more fairly adjudicate sexual assault. At least a dozen schools have responded with defiance.
“Regardless of this new DOE action and interim guidance . . . we will not waver in our commitment to Title IX and its protections,” said California State University, Northridge President Dianne Harrison in a statement. She added that current policies adhere to the state law and executive orders and will remain in place.
“It’s business as usual, nothing has changed on this campus,” St. Edward’s University Title IX Coordinator Lisa Kirkpatrick told the student newspaper. Mrs. DeVos’s interim guidance “is just that—guidance,” explained Danica Myers, Occidental College’s interim Title IX coordinator, in a campus-wide email. “It’s not the law.”
Yet there’s no legal difference between Mrs. DeVos’s new guidance and the 2011 “Dear Colleague” letter, which the Obama Administration used to impose far-reaching new Title IX regime. Higher education embraced the Obama-era directive, creating a system that routinely violated due-process and free-speech rights. Mrs. DeVos’s guidance and its accompanying Q&A seek to end some of these abuses, directing universities to avoid gender bias, weigh evidence fairly, and afford the same rights and opportunities to the accuser and accused, among other basic equity provisions.
It’s revealing that several campuses have responded with animus. But administrators don’t get to pick and choose which Department of Education guidance to follow, and schools in violation could lose federal funding or face Office of Civil Rights scrutiny.
Some recalcitrant universities are easy targets for Department of Education sanction. For instance, the University of Oregon insists that it already fairly and impartially adjudicates Title IX cases, so Mrs. DeVos’s guidance should have “very little, if any, impact on our current policies and procedures.” But last December the Lane County Circuit Court overturned the university’s suspension of a student accused of sexual assault. That student is now also suing in federal court in Eugene, saying the university denied him due process and took “arbitrary, discriminatory and illegal actions designed to reach a predetermined action” against him.
Kathleen Salvaty, the administrator who presides over Title IX adjudication across all nine University of California campuses, says the system-wide practices “will remain in full effect.” She also claims the university’s Title IX policy already requires “equal rights for complainants and respondents.”
But this past summer, a federal judge in central California acknowledged plausible concerns that the university may have acted with gender bias and denied due process to an accused male student. Allowing the case against the UC Regents to proceed, Judge Stephen Wilson wrote that the unnamed student’s complaint “depicts the disciplinary proceedings as one-sided and against the weight of significant evidence” and “cast doubt on the accuracy of the outcome of the disciplinary proceedings.”
Mrs. DeVos’s interim guidelines permit campuses to continue using the controversial “preponderance of evidence” standard for now, albeit only if that lesser measure of proof is also applied in non-Title IX misconduct cases. We’d have preferred a mandated “clear and convincing evidence” standard, but Mrs. DeVos tried to give schools as much discretion and flexibility as possible.
Clearly the respect isn’t mutual. Unlike the Obama Administration, Mrs. DeVos intends to abide by the Administrative Procedure Act, going through the required rule-making process to issue the final Title IX regulation. The insubordination of administrators invites a tougher approach to restoring due process on campus.
Appeared in the October 9, 2017, print edition.