Al Drago / The New York Times

Education Secretary Betsy DeVos

September 5, 2017

DeVos Expected To Make ‘Major Announcement’ on Title IX Policy

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Nearly two months after she met with advocates for and against Obama-era Title IX mandates, U.S. Secretary of Education Betsy DeVos is planning to make a “major announcement” in a Thursday speech, BuzzFeed News reported.

The event at the Antonin Scalia Law School in Arlington, Virginia will primarily focus on Title IX policy, federal officials told the law school, the article said.

Experts have reportedly speculated that a 2011 Title IX mandate from the Obama administration’s Department of Education is on the chopping block. That mandate, while highly influential, is neither a law nor a federal regulation, but instead a “Dear Colleague” letter that instructs schools on how to handle sexual assault complaints in a way that conforms with the Education Department’s interpretation of Title IX.

“There was no legal authorization for the issuance of that thing,” said Prof. Kevin Clermont, law, an expert on legal procedure and a critic of the letter. “It’s just a letter written by ideologues that avoided the notice-and-comment fashion for making law. It’s not law.”

The government characterized the letter as an explanation of schools’ pre-existing responsibilities under Title IX, saying it “provid[es] additional guidance and practical examples regarding the Title IX requirements as they relate to sexual violence.”

Under threat of losing federal funding should they fail to comply with the letter, universities were directed to comply with a host of requirements, including one of the letter’s most controversial tasks, which tells universities to use a preponderance of the evidence standard in adjudicating Title IX complaints.

The preponderance standard means that a person accused of sexual assault will be found responsible if more than 50 percent of the evidence points to the person’s guilt — a far lower legal standard than the “proof beyond a reasonable doubt” standard required to find guilt in criminal cases.

But if DeVos rescinds the Obama-era guidance on Thursday, universities may no longer be bound to the preponderance standard when adjudicating Title IX cases.

The Department of Education under former President Barack Obama, which opened six investigations against Cornell for its handling of Title IX casesall of which are still active —  justified the preponderance standard by arguing that it conforms to the evidentiary standard used in civil discrimination suits. Because Title IX is an anti-discrimination law, the department said, preponderance is the right standard to use while enforcing it.

Many anti-sexual violence advocacy groups, including the student-led Know Your IX organization, have applauded both the Dear Colleague Letter and the preponderance standard.

“[T]he preponderance standard puts both parties (and their access to education) on equal footing, in keeping with Title IX’s equality mandate,” Know Your IX writes on its website.

“The [Dear Colleague Letter] is important because no survivor who is a freshman in college and experiencing trauma should have to go through 30 years of case law and regulations to understand what her rights are,” Know Your IX policy coordinator Sejal Singh, a Harvard Law student, told Broadly.

The preponderance standard remains controversial at Cornell and beyond.

Criticism of the lower evidentiary standard has come in part from past members of the University’s Judicial Codes Counselor office, which is responsible for defending Cornell students accused of policy violations.

Kendyl Keesey J.D. ’17, who worked in the office for two years, said the preponderance standard is partially to blame for what she called a “crisis in due process” on campus.

“There is a tendency to look for a feather on the scale between two sides in some cases,” Keesey told The Sun. “That’s the nature of preponderance of the evidence. That’s where our office is finding some area to criticize.”

Amanda Minikus J.D. ’15, also a former judicial codes counselor, condemned the preponderance standard in harsher terms in a 2015 report, saying the standard should not be used when the consequences of being found guilty are significant.

“The implementation of the preponderance standard in Policy 6.4 permits these consequences to follow a decision based on something marginally better than a coin toss.”

And criticisms of the Dear Colleague Letter — the preponderance standard in particular — reverberate beyond Cornell’s walls.

The Philadelphia-based Foundation for Individual Rights in Education argued in a letter to President Trump that the preponderance standard risks exacerbating injustices since universities do not have “the basic procedural protections that civil courts use,” including subpoena power, cross-examination, discovery and more.

Collegiate “tribunals are making life-altering determinations using a low evidentiary threshold that amounts to little more than a hunch that one side is right,” the organization wrote in its letter to the President.

Four Harvard Law School professors recently made a similar argument. The professors, all women, called on Harvard to use the standard “only if all other requirements for equal fairness are met.”

The letter also dictates that schools must afford equal appeal rights to complainants and the accused, which some critics say creates the possibility of double jeopardy.

The letter also “strongly discourages” schools from allowing parties to cross-examine each other, a constitutional right in American criminal law. Cornell has adopted the OCR’s suggestion in its Title IX rules, barring direct cross-examination entirely.