Sep. 12, 2017

By Wendy Murphy

Betsy DeVos has made it clear that she intends to revoke President Obama’s 2011 “Dear Colleague Letter,”  a letter that simply gives schools guidance on how to comply with women’s and girls’ educational civil rights. She says her motive is to protect "due process" rights for campus sex offenders. 

Here’s the truth.

Betsy DeVos doesn’t care about “due process” rights for accused students. How could she? There aren’t any. Due process rights apply when the government is endeavoring to deprive a person of a constitutionally protected liberty interest. Colleges are not the government and there is no constitutional right to remain in college.

Which doesn’t mean that it’s wrong to want due process rights for college students. Many people do, because some students are expelled without any process whatsoever, even for minor offenses like cheating, smoking marijuana, and drinking alcohol. In fact, students are often expelled for smoking pot, without an investigation or hearing, and without having the drugs for testing to make sure it was pot that the student was actually smoking. Students also get expelled for assaults against Muslim, black and Jewish students, without investigations and hearings. Betsy DeVos has never once objected, or expressed concern that expelling all these types of students without due process is problematic. Why? Because DeVos doesn’t give a damn about due process. What she cares about is subjugating women, and only women, to deprive them of the right to equal and safe access to education, a right they have enjoyed for almost fifty years. 

Everything DeVos said during her lame speech was fingernails on chalkboard. From the patronizing and protest too much opening line about how “even one sexual assault” is one too many, to the ridiculous remark about how one false allegations is also one too many was reminiscent of President Trump’s similarly lame remark about how pro-racism protesters are the same types of “good people” as anti-racism protesters. This is not to say that false allegations should be taken lightly, but the far larger problem is that one in four women is sexually assaulted in college; a number that means women are more likely to be sexually assaulted if they go to college than if they do not.

One would expect the Secretary of Education, after all, to be smart enough to understand that only the victim of a civil rights offense can seek civil rights redress on campus. The accused offender does not, by virtue of having been accused of committing a civil rights offense, enjoy the same civil rights status as his victim. If he did, white supremacists would stand on equal civil rights footing with their black victims during campus hearings to address racist assaults on campus. 

Women were guaranteed civil rights protections in education back in 1972, under Title IX and Title IV of the Civil Rights Act of 1964. These important civil rights laws state that no person shall be denied access to education, or subjected to discrimination, on the basis of “race, sex, or national origin."  And because discrimination takes many forms, including severe forms such as violence, sexual assaults, like racist assaults, are covered. This is not news. Countless courts have ruled over the years that a single sexual assault is a civil rights offense.  

People who violate civil rights laws are not protected by them.  Nor do they enjoy a right to rape women or beat black people. And they don’t have a “due process” right to remain in college. Period. 

The only one with actual “rights” is the victim of a civil rights offense. 

Which does not mean schools should be unfair to accused students. Of course they should be fair. But DeVos wants fairness only for male students accused of committing civil rights offenses against women. If the same male students are accused of assaulting black, Irish, Jewish or Muslim students, DeVos apparently wants no fairness at all because she didn’t say a word about any other type of violence on campus, which proves that her plan has nothing to do with due process.

Women’s rights groups are outraged about DeVos’ new announcement about Title IX, not because they oppose due process rights for students,, but because they are disgusted by DeVos’ manipulation of public opinion, and grotesque misappropriation of such an important legal doctrine. By wrapping her agenda in the language of due process, she silences those who fear being labeled “anti-due process fascists.” Ironically.

Devos said she will provide a substitute for Obama’s 2011 Dear Colleague Letter, and while she has not yet revealed exactly what she plans to release, her declaration that the process she called “rule by letter”is "over" means she will not release her own Dear Colleague Letter. This leaves a few options. She could issue federal “guidance,” or “guidelines,” or some other type of subregulatory document that sets forth her opinion of how she thinks schools should respond to sex-based harms on campus. 

But she said she will be soliciting public comments before acting, which means she is likely planning to amend the Title IX regulations themselves. 

Unlike subregulatory guidance and "letters," the regulations are enforceable as laws. In other words, they’re very important. The Title IX regulations have been in place and have been respected by administrations on both sides of the aisle since 1975. They explicitly mandate that women and girls must have equal access to, and be protected from sex discrimination in, education. The regulations also require “prompt and equitable” redress for victims; the same redress afforded victims of other protected class categories, such as race and national origin.

DeVos is obviously planning to weaken these gold standard regulations that have for decades ensured gender equality on all campuses, from K-12, through college and graduate school. If she succeeds, she will also face a barrage of lawsuits because the Secretary of Education cannot lawfully weaken a federal civil rights statute by changing the language of the regulations or the subregulatory guidance and "letters.". 

Title IX can only be weakened if Congress enacts a new law to directly weaken it. If DeVos tries to weaken Title IX indirectly, women will file lawsuits endlessly, and will easily win rulings in the courts, making clear that DeVos overstepped her authority; an inevitable if ironic result given DeVos’ claim that Obama overstepped his authority by issuing the 2011 Dear Colleague Letter. 

Between now and when DeVos announces the specifics of her plan to declare women second-class campus citizens, people who care about gender equality in education should assume the worse, and start their own counteroffensive, including:

1. Making sure every campus victim is encouraged to call 911 in every case; to make a public record of the incident. A public record helps to hold people accountable.

2. Making sure every campus victim reports every sexual assault in writing to all top level university officials, from the President on down. They should not report solely to the Title IX coordinator as this could lead to the university not being obligated to count the incident in its annual reports, leading to artificially low incidence rates in public reporting documents.

3. Making sure every campus victim is encouraged to file for restraining orders and lawsuits in court, rather than seeking no-contact orders on campus, or seeking help from a government agency, such as the Office for Civil Rights, the Department of Justice, and the Department of Education. Betsy Devos has made it clear that her agencies have no intention of holding schools and offenders accountable. Judges in real world courts, especially state court judges, are not affected by federal policy changes.

4. Making sure every campus victim understands the option of seeking justice in state courts, rather than federal courts. State law is usually preferable for victims because state constitutional provisions and state civil rights laws offer stronger legal protections than federal law.

5. Making sure every campus victim understands the option of reporting an assault as “based on” race or national origin under Title VI, rather than sex under Title IX. Devos intends to weaken only women’s civil rights, not the rights of students who suffer assaults based on race and national origin. Thus, it makes sense for black women, for example, who experience a sexual assault as a “based on sex and race” offense, to rely on the “based on race” label, rather than the “based on sex” label. Likewise, Irish and Jewish women who experience a sexual assault “based on sex and national origin” should report assaults as “based on national origin” cases. These labels will help to ensure that gold standard civil rights standards apply, and will not be watered down by DeVos’ plan to weaken Title IX. 

6. Making sure every campus victim knows to rely only on the Title IX regulations, (see below) not the Dear Colleague Letter or other subregulatory guidance, when seeking justice on campus or in a real world courtroom.

7. Making sure every campus victim knows to file lawsuits only in state courts, not federal courts, especially in states where women enjoy full constitutional equality under the state constitution and/or fully equal civil rights protections in education, on par with race and national origin, etc., under state civil rights laws.

8. Making sure every campus victim in a public school knows to report every sexual assault on campus under Title IX and Title IV of the Civil Rights Act of 1964, which covers “race, sex, and national origin.” Title IX applies to private and public schools that receive federal funds, but Title IV applies to all public schools. Title IV and Title IX are co-equal civil rights laws, which, in addition to Title VI, ensure that no offense against a woman or a girl is subjected to separate or different treatment compared to other protected class categories.


1. Under Title IX, “no person shall, on the basis of sex be . . . subjected to discrimination.” 34 C.F.R. part 106.31(a).

2. Under Title IX, a school “shall not, on the basis of sex,” inter alia, “treat one person differently from another in determining whether such person satisfies any requirement of condition for the provision of such aid, benefit, or service; provide different aid, benefits or services in a different manner; deny any person such aid, benefit, or service; subject any person to separate or different rules of behavior, sanctions, or other treatment, otherwise limit any person in the enjoyment or any right, privilege, advantage or opportunity.” 34 C.F.R. part 106.31(b)(1-7)

3. Under Title IX, a school must designate at least one employee to coordinate efforts to comply with its responsibilities under Title IX including any investigation of any complaint alleging any actions, which would be prohibited by Title IX. A school must notify all its students and employees of the name, office address, and telephone number of employee designated to coordinate such efforts. 34 C.F.R. part 106.8(a).

4. A school shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action, which would be prohibited by Title IX. 34 C.F.R. part 106.8(b).

5. A school shall implement specific and continuing steps to notify students and employees that it does not discriminate on the basis of sex and that it is required by Title IX not to discriminate in such a manner. Such notification shall state that the requirement not to discriminate extends to employment and that inquiries regarding the application of Title IX may be referred to the designated employee or to the Assistant Secretary for Civil Rights at the Department of Education. 34 C.F.R. part 106.9(a).