Education Secretary Betsy DeVos

Al Drago / The New York Times

Education Secretary Betsy DeVos

September 7, 2017

DeVos Slams ‘Failed’ Title IX System, Suggests ‘Better Way Forward’

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Issuing a firm rebuke of Obama-era Title IX guidance, U.S. Secretary of Education Betsy DeVos denounced the “failed” Title IX system on college campuses throughout the country in a Thursday address at the Antonin Scalia Law School.

DeVos’s address followed a busy year for a Cornell Title IX office that’s currently facing six Department of Education investigations — the most for any school in the country — and two lawsuits from men accused of sexual misconduct who say they were not treated fairly in Cornell’s Title IX process.

“A system is not fair when the only students who can navigate it are those whose families can afford to buy good lawyers,” DeVos said, referencing the nationwide trend, observable at Cornell, of accused students who take to courts to fight guilty findings in Title IX proceedings.

Last March, a Title IX investigator who was investigated and cleared of anti-male bias resigned, saying she felt harassed by an accused student and his lawyer, according to a court filing. That investigator is mentioned in both of the active lawsuits against Cornell.

And criticisms of Cornell’s disciplinary process for sexual misconduct cases have existed for years, the most notable criticism coming in a 2015 report from Amanda Minikus J.D. ’15, a former Judicial Codes Counselor at the University.

Cornell changed its sexual misconduct policies in 2016, and these revised procedures recently won top marks for fairness. But some have questioned whether these procedures have produced fairer outcomes.

Asked to comment on DeVos’s address, John Carberry, senior director of media relations, said the University does not have a formal statement at this time.

“[T]he system established by the prior administration has failed too many students,” DeVos said in her address. “Survivors, victims of a lack of due process and campus administrators have all told me that the current approach does a disservice to everyone involved.”

No official change to policy appeared to be announced, but DeVos said the Education Department will “launch a notice-and-comment process to incorporate the insights of all parties in developing a better way.”

‘Notice-and-comment’ is a process of acquiring public input that typically precedes the issuance of new regulations by the Department of Education and other executive departments. Notably, the Education Department under President Obama did not go through the notice-and-comment period before issuing a controversial letter that critics said lessened due process protections for students accused of sexual assault.

“The era of ‘rule by letter’ is over,” DeVos announced. “For too long, rather than engage the public on controversial issues, the [Education] Department’s Office for Civil Rights has issued letters from the desks of unelected and unaccountable political appointees.”

That was not DeVos’s only rebuke of the Obama administration’s DoE, which, the Secretary said, “weaponized the Office for Civil Rights to work against schools and against students.”

“No school feels comfortable calling the Department for simple advice, for fear of putting themselves on the radar and inviting an investigation,” an unidentified school administrator reportedly told DeVos.

American Federation of Teachers president Randi Weingarten ’80, who says she is a survivor of sexual assault, said in a statement that “it was sickening to hear Betsy DeVos claim that the Obama administration had weaponized the Department of Education’s Office for Civil Rights by stepping up and doing its job to protect students against rape and sexual assault and to support survivors.”

President Emeritus Hunter R. Rawlings III, echoing the sentiment of tension between schools and the Education Department, critiqued its several investigations of Cornell in an interview with The Sun last year.

“I don’t think Washington has helped much and their presumption that universities aren’t dealing with this problem is wrong,” Rawlings told The Sun. “The federal government is demanding we be on top of the issue, but where they presume we’re not doing a good job it’s not helpful.”

DeVos said that a reason for the failing system, in her view, was its lack of due process, which appears to be a keystone of the Secretary’s “better way.”

“Due process is the foundation of any system of justice that seeks a fair outcome,” DeVos said. “The notion that a school must diminish due process rights to better serve the ‘victim’ only creates more victims.”

The education secretary also stressed that fairer processes benefit sexual assault survivors as well, saying, “Survivors aren’t well-served when they are re-traumatized with appeal after appeal because the failed system failed the accused.”

That may be true for some complainants at Cornell, whose alleged assailants are still fighting in court to reverse sanctions imposed for assaults that allegedly happened over a year ago — and in one case, two years ago.

“Any school that refuses to take seriously a student who reports sexual misconduct is one that discriminates,” DeVos said. “Every survivor of sexual misconduct must be taken seriously.”

DeVos’s rhetoric evidently did not win over all anti-sexual violence activist groups. Know Your IX, a student-led group, said in a statement that “Secretary DeVos sent the message to student[s] and survivors across the country that the Department of Education doesn’t have their back.”

The official Women’s March Twitter account tweeted against DeVos’s address.

However, the Foundation for Individual Rights for Education, a nonpartisan group whose mission is “to defend and sustain individual rights at America’s colleges and universities” issued a statement supporting the address.

“Today’s speech is reason for great optimism that the important issue of campus sexual assault will finally get the fair and open consideration it deserves,” the FIRE’s statement said.