DeVos’ Rules on Title IX Sexual Assault Investigations Will Be Reviewed

Tim Burke, Fraternal Law Partners, tburke@manleyburke.com

On March 2, the day that Miguel Cardona was sworn in as the new Secretary of the United States Department of Education, he received a letter signed by more than one hundred members of the United States Congress that implored him “to prioritize replacing Secretary Betsy DeVos’ final rule prescribing how K-12 schools and post-secondary institutions must respond to sexual harassment and assault under Title IX”. 

The Members of Congress argued that the DeVos’ regulations “gut protections for survivors of sexual violence”.  They focused on the victims of sexual violence, arguing among other things, that the DeVos regulations were “cruelly subjecting students in higher education to relive their assault with live hearings and cross-examination by a perpetrator’s advisor of choice.”  The Members further criticized the rules as bizarre and stated that they wrongly creating unnecessary delays and narrowed the definition of sexual harassment. 

On March 8, President Biden made it clear that a review of those rules will take place, issuing an Executive Order requiring the review to occur within 100 days.  The President made it clear in that order that:

It is the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.

What tends to get overlooked in the competing visions of what is appropriate in the rules designed to enforce Title IX is that even before the DeVos regulations, numerous federal courts had found fault with colleges and universities that failed to provide due process to those accused of misconduct.

No doubt the DeVos rules will be modified. Support for survivors of sexual assault is a critically important matter.   But elements of due process must be afforded to both complainants and the accused.  If the new rules fail to provide due process to the accused, federal courts will intervene and require it.