WASHINGTON – Senator Ben Cardin (D-Md.), a cosponsor of the bipartisan Campus Accountability and Safety Act (S. 856) to combat campus sexual assault, joined with 32 U.S. Senators to send a letter to U.S. Secretary of U.S. Secretary of Education Betsy DeVos slamming her decision to revoke guidance that directs schools on how to handle investigations of sexual assault and urging her to reverse course. Secretary DeVos’ decision has undermined the rights of sexual assault survivors and created chaos and confusion for schools.
“Your action on Friday shows a clear lack of concern for the many requests of survivors of sexual assault and members of Congress who have asked you to leave the previous guidance in place,” wrote the Senators. “Your new guidance is already creating uncertainty and chaos for schools and we ask that you immediately reinstate the previous guidance.”
Last Friday, Secretary DeVos rescinded Obama Administration guidance and issued new and confusing interim guidance, and while she indicated she will start a new rule-making process, she provided no timeline. Advocates warned this interim guidance could result in fewer survivors coming forward and may allow the campus sexual assault epidemic to be swept under the rug. This latest move is one more in a long list of troubling decisions surrounding student safety and civil rights Secretary DeVos has made, including appointing Candice Jackson as Acting Assistant Secretary for Civil Rights and advising the Office for Civil Rights to scale back systematic investigations that help combat the epidemic of campus sexual assault.
In addition to Senator Cardin, 31 U.S. Senators signed the letter including HELP Committee Ranking Member Murray (D-WA), Casey (D-PA), Blumenthal (D-CT), Gillibrand (D-NY), McCaskill (D-MO), Baldwin (D-WI), Franken (D-MN), Stabenow (D-MI), Cortez Masto (D-NV), Feinstein (D-CA), Leahy (D-VT), Hirono (D-HI), Shaheen (D-NH), Sanders (I-VT), Hassan (D-NH), Booker (D-NJ), Murphy (D-CT), Reed (D-RI), Warren (D-MA), Kaine (D-VA), Markey (D-MA), Harris (D-CA), Schatz (D-HI), Brown (D-OH), Wyden (D-OR), Schumer (D-NY), Carper (D-DE), Bennet (D-CO), Coons (D-DE), Cantwell (D-WA), and Peters (D-MI).
Full text of the letter below and PDF can be found HERE.
September 27, 2017
The Honorable Betsy DeVos
Secretary of Education
U.S. Department of Education
400 Maryland Ave. S.W.
Washington, D.C. 20202
We are extremely disappointed that you have decided to rescind the 2011 and 2014 Department of Education (Department) guidance on sexual violence and sex-based discrimination protected by Title IX of the Education Amendments of 1972 (Title IX). Your action on Friday shows a clear lack of concern for the many requests of survivors of sexual assault and members of Congress who have asked you to leave the previous guidance in place. Your new guidance is already creating uncertainty and chaos for schools and we ask that you immediately reinstate the previous guidance.
Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Rolling back the guidance does not eliminate existing legal obligations that schools have to comply with Title IX or the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act that were enacted as a part of the Violence Against Women Reauthorization Act of 2013 (VAWA). However, the guidance you issued creates confusion regarding compliance with the law. The VAWA regulations require that an institution of higher education’s policy must include the timelines for a disciplinary hearing and a process for extending those timeframes for good cause. Meanwhile, the Q&A document issued last week indicates that the Office for Civil Rights (OCR) will make a case-by-case determination as to a school’s good faith efforts for a “fair, impartial investigation” suggesting OCR will not be enforcing the requirement for a consistent policy.
Additionally, the new guidance allows schools to stop using the preponderance of evidence standard and to deny a complainant the right to an appeal. It also limits schools’ ability to use interim measures to minimize the burden on the complainant. Finally, the Q&A includes a change in policy that mediation will now be an acceptable form of resolving a complaint of sexual assault. This change is in direct contradiction to the 2001 guidance even though the Dear Colleague Letter says the Department will continue to rely on the 2001 guidance to assess whether a school is in compliance with Title IX.
If your goal is to produce new regulations rather than utilize guidance to inform stakeholders of their rights and obligations, it is incomprehensible that you would issue new, conflicting guidance as a part of that process. A commitment to the full and transparent process of a real rulemaking process would dictate that you pursue that process rather than creating uncertainty for schools, survivors and all stakeholders by issuing new guidance that, in fact, provides less guidance than was previously available and without a public notice and comment period. Furthermore, the Department’s actions creates a devastating lack of clarity for the ongoing investigations of 360 cases of sexual violence at 258 postsecondary schools.
We ask that you reinstate the previous guidance and make it clear that survivors’ voices will be heard throughout any rulemaking process you decide to pursue. We thank you for your prompt attention to this important matter.