A top deputy under Secretary of Education Betsy DeVos has indicated she wants to put a key Obama-era directive on campus rape policies through a process that could change federal Title IX rules, sources have told BuzzFeed News.
Candice Jackson, the current head of the US Department of Education's civil rights office, has said in private meetings with different organizations in recent weeks that she wants a 2011 Title IX directive to go through a process called notice-and-comment. That would give the public the chance to submit comments to the department about the rules — in this case, how schools handle sexual assault cases — and let the department respond to their comments. It's a slow process that gives proponents of the 2011 directive a chance to argue for keeping the rules in place, but ultimately, the department has the final say over the future of the regulations.
The 2011 directive, known as a Dear Colleague letter, laid out what schools should do under Title IX when a student reports a sexual assault. It was unveiled by Vice President Joe Biden and considered a "call to action" in the higher education world, and a cornerstone of the Obama administration's efforts to tackle campus rape. The letter included some mandates, including the standard-of-evidence that schools are to use in determining if sexual assault allegations are upheld. It has been celebrated by victims’ advocates, but condemned by critics as undermining due process for accused students.
Two sources from organizations involved in discussions on the future of Title IX told BuzzFeed News that in meetings with Jackson, she said when it comes to submitting the 2011 directive to notice-and-comment, "everything is on the table."
Conservative and libertarian groups and some congressional Republicans have argued the 2011 directive was illegal because it created new regulations that didn't go through notice-and-comment before being announced. Multiple lawsuits have been filed challenging the directive, and the department in the past has defended the directive. But this month, it did an about-face and asked a federal court to put the lawsuits on hold while it reviews it. That sent a strong signal that the department is seriously considering amending the directive, something that worries victims' advocates.
The department declined to comment for this story.
The lawsuits were brought by Earl Ehrhart, a Republican lawmaker in Georgia who met with DeVos in April; a former University of Virginia student who was found to have violated his school's sexual assault policy; and the evangelical Oklahoma Wesleyan University.
S. Daniel Carter, a longtime campus safety consultant who pushed for the 2011 directive, said it did not set new rules but clearly laid-out long-established policies for schools to follow.
"That's one of the reasons the Dear Colleague letter was not put out for public comment; it was never intended — at least by those of us asking for it — to reflect a new policy. The intention was it would merely restate and prioritize long-established policy," Carter said.
Some Congressional Republicans have joined Democrats in calling for DeVos to keep the 2011 directive. But behind the scenes, at least one Republican has asked her to scrap it altogether.
Sen. James Lankford, an Oklahoma Republican, has lobbied President Trump and Secretary DeVos to rescind the 2011 directive in the same way that guidance on transgender students was revoked. The Obama administration "abused its authority" by regulating on Title IX without the legal authority to do so, Lankford argued in a May letter obtained by BuzzFeed News.
DeVos has said relatively little on the issue, but said in July the department should move "quickly" to overhaul Title IX enforcement. She made the comment following a day of meetings that she and Jackson held with higher education lawyers, advocates for survivors, rape victims, and students who say they were falsely accused of sexual assault.
Jackson has also met privately and held phone calls with defenders of accused students and advocates for campus rape victims on a regular basis since her appointment in April.
The Education Department, like all other federal agencies, is already gathering comments about which "unnecessary" or "outdated" regulations should be overhauled, following an executive order by President Trump. Activists for victims are preparing to launch a campaign encouraging their supporters to submit comments to retain the 2011 directive, which many advocates consider key to addressing campus rape. Critics who say the 2011 letter weakened due process protections have also weighed in, arguing for the directive's overhaul.