The DeVos Guidance Speech
Education Secretary Betsy DeVos on Thursday gave one of the most important and defining speeches to emerge from the Trump Administration. It deserves to be read in full.
Her subject, long anticipated in the academic community, was the Obama Education Department’s 2011 “guidance letter” to all institutions of higher learning on conducting investigations of sexual abuse under the federal education law known as Title IX. As expected, Mrs. DeVos and the head of her civil-rights office, Candice Jackson, intend to replace the current Title IX guidance after a period of public comment. The DeVos speech, however, was about much more than a bureaucratic revision.
Let’s review the origins of the 2011 guidance letter. Its nominal purpose was to address unanswered complaints on campuses by victims of sexual assault—a real problem.
The Obama Education Department’s response was to circumvent Congress and neglect normal executive-branch rule-making procedures mandated in the Administrative Procedure Act, such as soliciting public comment. Instead, it simply jammed the policy through by sending out a “Dear Colleague” letter, including an explicit threat that noncomplying schools could lose federal funding.
Mrs. DeVos’s speech is a meticulous deconstruction of the damage done when progressive activists like those who populated the Obama Administration believe their ends justify whatever legal and administrative obliteration it takes.
“Rather than engage the public on controversial issues, the (Obama) Department’s Office for Civil Rights has issued letters from the desks of unelected and unaccountable political appointees,” Mrs. DeVos said. “Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students.”
With the original Dear Colleague letter, the Obama Administration introduced a new judicial standard, in which students accused of sexual misconduct could be severely punished based on a mere “preponderance of evidence.” Mrs. DeVos noted that these high-stakes cases—with lifetime consequences for both sides—are brought before a “school administrator who will act as judge and jury.”
The result, unsurprisingly, has been a travesty of injustice, incompetence and inconsistency as schools struggled to comply. Many institutions, often small colleges with limited resources, are now engulfed in lawsuits flowing, again unsurprisingly, from these kangaroo courts.
Secretary DeVos opened her speech with the hope that “every person—even those who feel they disagree—will lend an ear to what I outline today.” It is a faint hope.
Even before she gave the speech, 20 Democratic attorneys general, of all people, wrote a letter warning against “a rushed, poorly-considered effort to roll back current policies.” After the speech, teachers union president Lily Eskelsen Garcia of the National Education Association said the DeVos proposal to rethink sexual-assault adjudication “offends our collective conscience.”
Well, hers anyway—this from a union that makes it nearly impossible to dismiss incompetent or even rule-breaking teachers.
Mrs. DeVos in her address goes more than the extra mile to include the valid concerns of victims, the accused, their parents, school administrators and what used to be commonly held notions of decency and justice.
The secretary deserves credit for taking on this legal and administrative nightmare, which she inherited from an Administration that specialized in creating them. She deserves support from the academic community in finding a way back to a solution.
Appeared in the September 8, 2017, print edition.