Betsy DeVos today rescinded the part of the 2011 Dear Colleague Letter that explained why schools must apply a preponderance of evidence standard in campus redress hearings under civil rights laws, such as Title IX.
This follows DeVos recent comments where she threatened to revoke the Dear Colleague Letter because the era of "rule by letter" is over –
But then she just issued her own "letter" by modifying President Obama’s letter, and removing only a piece of his directive.
Devos has no authority to ALLOW schools to violate Title IX by subjecting the credibility of women to stricter scrutiny than their male attackers, which is what it means to allow schools to apply a burden of proof more onerous than preponderance.
Nor does she have authority to ALLOW schools to subject women victims of sex-based civil rights offenses to stricter credibility than victims of other civil rights offenses, such as those based on race and national origin
This is because the Title IX regulations are EXPLICIT that schools may "not" treat "sex based" offenses "differently", AND because the regulations are explicit in a separate section that victims of sex-based harm (like race-based harm) MUST receive "equitable" redress. "Equitable" means schools can NOT apply a clear and convincing evidence standard as this is tantamount to declaring the credible word of a woman inherently less weighty than the word of a man. Congressman Chuck Grassley is on record as saying exactly this in a congressional hearing on this issue — that he was "grateful" the word "equitable" was removed from a bill he was trying to get enacted to weaken title ix. he said removal of the word "equitable" would mean schools could apply a more onerous burden on victims than mere preponderance and that preponderance would be mandatory if the word "equitable" remained as part of Title IX.
His bill was enacted in 2013 (the Campus SaVE Act) but was struck down as having "no effect" on Title IX in a lawsuit filed by me, so Equitable remains mandatory – which is why DeVos has no power to ALLOW schools to impose a more strict burden of proof on women victims. She has no power to CHANGE federal law — period.
Any school that dares subject victims to second-class treatment per the new DeVos statement will be sued. Victims won’t likely seek help from the OCR at the DOE because with DeVos in charge, the writing is on the wall — she will instruct her office not to enforce Title IX correctly. This will likely lead to mandamus lawsuits in federal court by victims seeking court orders requiring the DOE to enforce Title IX’s equity mandate, and to ignore the DeVos announcement on the grounds that she has no authority to permit violations of Title IX.
Schools will also be sued – not only in state court as i mentioned before but also federal court, where victims will sue NOT on the grounds that schools are not complying with the regulations, but rather, because schools are themselves DISCRIMINATING against women by subjecting ONLY victims of sex baed harms to stricter burdens of proof compared to victims of other types of civil rights violations based on race, etc.
The only way for schools to defend these lawsuits is to say that they treat ALL civil rights cases the same way and subject victims of race and national origin discrimination, including violence, to the same high level of scrutiny (more onerous than their white supremacist and anti-Semitic attackers) when they report race-based assaults, etc. No school will want to say openly that they value the word of a white supremacist or an anti-Semite MORE than the word of a black or Jewish victim of civil rights violence.
Yet DeVos announced today that she values the word of a rapist’s denial MUCH more heavily than the word of a rape victim’s report. This is blatantly illegal under Title IX, and unconstitutional.
It is the equivalent of setting up separate water fountains for "women only", and then making sure the water that comes out is poisonous. This is worse than separate but equal – the disgraced Supreme Court decision that held it was not racist to force black people to attend their own schools, so long as the quality of education was equal. This for women is worse because it is a declaration that women in education may be subjected to separate AND Unequal treatment.
That women’s groups are so impotently silent and are not suing with the same vigor that was used to challenge the Trump Administration’s decision on DACA is a big reason why higher education lobbyists and their puppets (like DeVos) think they can get away with it.
Lawsuits MUST be filed, preferably in state court where state civil rights laws are often better for women, and ALL victims should be calling 911 AND reporting all assaults, in writing, to all university officials in every case, no exception. This is the only way to make the truth known about the prevalence of the problem, and to keep the pressure up on schools to enforce Title IX in accordance with the law and regulations not matter what the lowly head of an agency says.
No matter how many times Betsy DeVos says it’s OK for schools to violate Title IX, the truth remains that an agency head can NOT give schools permission to violate civil rights laws. Any school that thinks it can win in court by saying "Betsy mad me do it" has a lot to learn – preferably from someone other than Betsy DeVos.