The Trump Administration believes that Obama-era guidance regarding sexual assault on college campuses created a “failed system” that was a “disservice to everyone involved,” Education Secretary Betsy DeVos said on September 7, 2017. According to DeVos, “There must be a better way forward.”
Enacted in 1972, Title IX is a federal law that prohibits discrimination based on sex in the educational setting. This includes protection from sexual harassment, including sexual violence.
In April 2011, under the Obama Administration, the Department of Education Office for Civil Rights issued guidance to educational institutions across the country, known as the “Dear Colleague Letter” (DCL). This DCL, in conjunction with the 2014 Q&As, stated that sexual violence is a form of discrimination under Title IX and that educational institutions had to address sexual violence in order to provide equal access to education. The DCL also set forth expectations for educational institutions in addressing sexual violence claims. Critics have said the guidance is unfair toward the accused and has created a quasi-legal system.
While DeVos made clear that the Trump Administration plans to step away from the sexual assault guidelines issued during the Obama-era, she did not announce any new policies that would be put in place immediately to help combat sexual assault on college and university campuses across the country. However, she said that, in developing rules to replace the current policy, the Department of Education would launch a notice-and-comment process to incorporate the insights of all parties and it also would seek university, legal, and medical expertise. Further, DeVos said “the era of ‘rule by letter’ is over” (apparently referring to the 2011 DCL and its subsequent guidance), and promised that the Office for Civil Rights, which is comprised of unelected officials, would stop its previous practice of issuing guidance through letters.
Jackson Lewis will continue to monitor this situation and provide updates.