Secretary DeVos Promises a "Better Way" for Conducting Sexual Misconduct Investigations

In a speech Thursday afternoon, U.S. Secretary of Education Betsy DeVos promised a “better way” to handle sexual misconduct investigations at colleges and universities. Notably, Secretary DeVos did not withdraw the 2011 Dear Colleague letter  published in 2011 or any other guidance or rule. She stated, however, procedures for handling sexual misconduct investigations would be submitted for “notice and comment,” the formal rule-making process.
 
Throughout her speech Secretary DeVos emphasized her view that the current system is letting both victims and the accused down. She criticized the overzealousness of her Office of Civil Rights (OCR) staff, stating OCR has been working against both schools and students. Secretary DeVos repeatedly expressed that schools are not doing enough to protect due process rights of students, such as not allowing the accused to have legal representation or even receive notice of the allegations against them before a decision is rendered. If so, this is in direct contravention of existing federal regulations promulgated by the Department pursuant to the Violence Against Women Act which provide that a school may not limit the accuser or accused’s choice of advisor and that both parties have the right to access any information used against him or her in the proceedings. See 34 CFR 668.46.     
 
Secretary DeVos also stated that school officials rendering judgments in sexual misconduct matters “may or may not have any legal training in adjudicating sexual misconduct…” Existing rules provide the proceedings must “[b]e conducted by officials who, at a minimum, receive annual training on the issues related to dating violence, domestic violence, sexual assault, and stalking and on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.” Id. 
 
What will the new rules look like? At this point it is hard to tell. Secretary DeVos praised reports from task forces established by the ABA Criminal Justice Section and  American College of Trial Lawyers, both of which advocated for standards of proof that are higher than the “preponderance of evidence” established by the Dear Colleague letter. The “preponderance of evidence” standard will likely be eliminated by the new rules, but it is unknown whether the rules will dictate an alternative standard or permit schools to adopt their own standard. Ultimately, it appears the rules may compel schools to conduct a full-blown trial process similar to a criminal court, with robust discovery and attorneys representing both sides. In the near term it is likely that OCR reviews will be less robust, making those reviews less time-consuming for colleges and universities.  But the new rules could increase the burden on colleges and universities during investigations and hearings, and the trend towards more lawsuits challenging decisions made by sexual misconduct hearing boards is unlikely to abate as schools work through how to best implement the new rules.
 
For now, unless the Department explicitly states the Dear Colleague letter is withdrawn, schools should continue to follow it. Schools should also follow any existing rules adopted by the Department. Formal comments regarding their experiences with sexual misconduct investigations should be submitted by schools when the time period for doing so opens to ensure their best practices for protecting the rights of both the victim and accused are reflected in the new rules.
  
Nate Uhl and Catherine Strauss are attorneys with Ice Miller LLP. Ice Miller has a robust Title IX practice, assisting clients with the development of policies and procedures, counseling clients during sexual misconduct investigations and hearings, and representing clients during reviews undertaken by the Department of Education’s Office of Civil Rights. Uhl works in Ice Miller’s Indianapolis, Indiana office and can be reached at nate.uhl@icemiller.com or (317) 236-2383. Strauss works in Ice Miller’s Columbus, Ohio office and can be reached at catherine.strauss@icemiller.com or (614) 462-1069.

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