Sec. Devos Shifts Title IX Guidelines to Protect Free Speech and Due Process on College Campuses

Posted: May 06, 2020 3:35 PM
Sec. Devos Shifts Title IX Guidelines to Protect Free Speech and Due Process on College Campuses

Source: AP Photo/Carolyn Kaster, File

Education Secretary Betsy Devos brought justice, free speech and due process back to the forefront on Tuesday when she announced new guidelines for Title IX on college campuses. As she promised at the beginning of her tenure, Sec. Devos adjusted the language of Title IX, the federal decree for the adjudication of sex crimes on college campuses, to further protect the accused.

Sec. Devos’s long-awaited new rules overhaul the guidance for Title IX created under the Obama Administration, while protecting free speech in regard to sexual harassment. President Obama’s guidelines characterized sexual harassment as “any unwelcome conduct of a sexual nature.” While sexual harassment is a serious offense, the Obama-era guidelines allowed virtually any unfavorable speech of the sexual nature to be vilified as sexual harassment. Sec. Devos’s new regulations keeps the Obama-era verbiage intact, but mandates that any conduct in question must be severely offensive to any reasonable person, mirroring a 1999 Supreme Court case, which deemed sexual harassment among peers as follows:

"So severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities."

Perhaps the most important changes made by Secretary Devos surround due process rights for the accused. Sexual assault and rape are growing issues on college campuses, undoubtedly, but institutions have trended away from due process and unfairly favored the accusers since the Obama-era guidelines, which were also slanted toward accusers. At the forefront of the Obama Administration's flawed guidance was the Dear Colleague Letter, which imposed weak standards for evidence in sexual assault cases on college campuses. First unveiled in 2011, the letter instructed institutions to require a "preponderance of the evidence" standard for determining guilt, rather than the "beyond a reasonable doubt" evidentiary benchmark used in courtrooms. Sec. Devos and the Office of Civil Rights within the Department of Education rescinded the letter in 2017.

Sec. Devos’s changes not only demand a reasonable evidentiary standard, but her changes also explicitly protect the due process rights of the accused and gives the accused party the right to face and cross-examine their accuser, as would be the procedure in a courtroom. 

Sec. Devos has received criticism from women’s groups for shifting Title IX regulations, with many claiming that victims will suffer as a result of the changes to Title IX; in reality, Sec. Devos’s changes only ensure fairness to both parties in sexual misconduct disputes. Indeed, Sec. Devos’s new guidelines also scrapped the Obama-era mandate that University officials are required to report misconduct, even without the consent of the potential victim. Not all students want to report and endure the adjudication process in these cases, but under previous guidance the agency was exclusively given to University officials. Under Sec. Devos’s guidance, students are given autonomy to proceed as they wish, or to not report if they so choose.

Sec. Devos will inevitably face backlash for her bold action in defense of the accused, and Democrats will claim that these changes to previous guidance, which was not consistent with the judicial system, gives a win to sexual abusers. In reality, Sec. Devos’s changes to Title IX represent a win for freedom of speech, due process and fair adjudication of sex crimes.