DeVos Rescinds Obama-Era Campus Sexual Assault Guidance: It 'Failed to Ensure Fundamental Fairness'

Education Secretary Betsy DeVos speaks at the Magnet Schools Of America Conference on February 15, 2017 in Washington, DC. DeVos addressed a recent protest at a public school she visited in Washington, DC last week following her controversial nomination to the post by President Donald Trump. / Getty Images
Education Secretary Betsy DeVos / Getty Images
September 22, 2017

Education Secretary Betsy DeVos on Friday officially rescinded the Obama-era "Dear Colleague" letter advising universities on how to respond to carry out sexual assault investigations.

DeVos’ department deemed the withdrawn letter inadequate in terms of ensuring due process in campus assault cases, CNN reports. The Obama administration issued the guidance letter on how college administrators should act in order to abide by Title IX, a law prohibiting sex discrimination on colleges receiving federal funding. However, critics argued the guidance overreached, and the Department of Education has replaced the Obama-era guidance with an interim guide.

"The withdrawn documents ignored notice and comment requirements, created a system that lacked basic elements of due process and failed to ensure fundamental fairness," the Education Department said in a statement.

DeVos released a statement saying the department’s interim guidance will help combat sexual assault while also treating students fairly.

"This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly," DeVos said. "Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes."

DeVos’ critics have defended the original guidance for its focus on convicting the accused and protecting victims. Former Vice President Joe Biden posted a statement on Facebook earlier this month that said the department’s plan to rewrite the guidance was "a step in the wrong direction."

"Any change that weakens Title IX protections will be devastating," Biden wrote. "Sexual assault is the ultimate abuse of power, and its pernicious presence in our schools is unacceptable."

Obama’s original guidance threatened to rescind funding for universities if they did not comply sufficiently. Efforts to comply, however, have led to problems in how campus sexual assault cases are adjudicated, according to a study by the Foundation for Individual Rights in Education (FIRE).

"Nearly three-quarters (73.6 percent) of America’s top 53 universities do not even guarantee students that they will be presumed innocent until proven guilty," the FIRE study reads. The study discovered campus hearing defendants did not receive a number of "due process" elements, including a notice of allegations against them, adequate time to prepare a defense, or the right to present evidence.

The Atlantic's Emily Yoffe also found problems with the implementation of Title IX regulations at various universities. One problem she found was that black men were "vastly overrepresented" in the cases she tracked, suggesting the system had not defended their right to a fair hearing.

DeVos echoed these concerns in a speech at George Mason University.

"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," DeVos said earlier this month.