BETSY DEVOS, EDUCATION SECRETARY, AT HER FINEST – TITLE IX

 

In  this posting you will find two articles from the Wall Street Journal regarding Education Secretary, Betsy DeVos’s speech regarding Obama’s mandated Title IX.  Also included in this email is the link to Betsy DeVos’s  full speech .  The WSJ  editorial board considers this speech one of the most important and defining speeches from the Trump administration.   Nancy  

 Education Sec. DeVos to speak on Title IX guidelines

VIDEO OF FULL SPEECH OF BETSY DEVOS
THE WALL STREET JOURNAL

The DeVos Guidance Speech

The Education Secretary takes on Obama’s assault on campus due process.

Education Secretary Betsy DeVos speaks at George Mason University in Arlington, Va., Sept. 7,.2017

Education Secretary Betsy DeVos on Thursday gave one of the most important and defining speeches to emerge from the Trump Administration. It deserves to be read in full.

Her subject, long anticipated in the academic community, was the Obama Education Department’s 2011 “guidance letter” to all institutions of higher learning on conducting investigations of sexual abuse under the federal education law known as Title IX. As expected, Mrs. DeVos and the head of her civil-rights office, Candice Jackson, intend to replace the current Title IX guidance after a period of public comment. The DeVos speech, however, was about much more than a bureaucratic revision.

Let’s review the origins of the 2011 guidance letter. Its nominal purpose was to address unanswered complaints on campuses by victims of sexual assault—a real problem.

The Obama Education Department’s response was to circumvent Congress and neglect normal executive-branch rule-making procedures mandated in the Administrative Procedure Act, such as soliciting public comment. Instead, it simply jammed the policy through by sending out a “Dear Colleague” letter, including an explicit threat that noncomplying schools could lose federal funding.

Mrs. DeVos’s speech is a meticulous deconstruction of the damage done when progressive activists like those who populated the Obama Administration believe their ends justify whatever legal and administrative obliteration it takes.

“Rather than engage the public on controversial issues, the (Obama) Department’s Office for Civil Rights has issued letters from the desks of unelected and unaccountable political appointees,” Mrs. DeVos said. “Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students.”

With the original Dear Colleague letter, the Obama Administration introduced a new judicial standard, in which students accused of sexual misconduct could be severely punished based on a mere “preponderance of evidence.” Mrs. DeVos noted that these high-stakes cases—with lifetime consequences for both sides—are brought before a “school administrator who will act as judge and jury.”

The result, unsurprisingly, has been a travesty of injustice, incompetence and inconsistency as schools struggled to comply. Many institutions, often small colleges with limited resources, are now engulfed in lawsuits flowing, again unsurprisingly, from these kangaroo courts.

Secretary DeVos opened her speech with the hope that “every person—even those who feel they disagree—will lend an ear to what I outline today.” It is a faint hope.

Even before she gave the speech, 20 Democratic attorneys general, of all people, wrote a letter warning against “a rushed, poorly-considered effort to roll back current policies.” After the speech, teachers union president Lily Eskelsen Garcia of the National Education Association said the DeVos proposal to rethink sexual-assault adjudication “offends our collective conscience.”

Well, hers anyway—this from a union that makes it nearly impossible to dismiss incompetent or even rule-breaking teachers.

Mrs. DeVos in her address goes more than the extra mile to include the valid concerns of victims, the accused, their parents, school administrators and what used to be commonly held notions of decency and justice.

The secretary deserves credit for taking on this legal and administrative nightmare, which she inherited from an Administration that specialized in creating them. She deserves support from the academic community in finding a way back to a solution.

 

THE WALL STREET JOURNAL

DeVos Pledges to Restore Due Process

The Obama Education Department’s Title IX decree ‘failed too many students,’ she says.

September 8, 2017
by KC Johnson and Stuart Taylor Jr.     Messrs. Johnson and Taylor are co-authors of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).
EXCERPT FROM THIS ARTICLE:  Under Obama administration pressure, schools dramatically increased personnel in their Title IX offices, creating entrenched bureaucracies that will aggressively resist reform. And several states, including California and New York, have enacted laws designed to make it even more difficult for accused students to defend themselves. Thus the system will remain rigged against accused students until the Education Department issues specific, detailed rules to ensure fairness.

Education Secretary Betsy DeVos has made clear her intention to correct one of the Obama administration’s worst excesses—its unjust rules governing sexual misconduct on college campuses. In a forcefulspeech Thursday at Virginia’s George Mason University, Mrs. DeVos said that “one rape is one too many”—but also that “one person denied due process is one too many.” Mrs. DeVos declared that “every student accused of sexual misconduct must know that guilt is not predetermined.”

This might seem like an obvious affirmation of fundamental American principles. But such sentiments were almost wholly absent in discussions about campus sexual assault from the Obama White House and Education Department. Instead, as Mrs. DeVos noted, officials “weaponized” the department’s Office for Civil Rights, imposing policies that have “failed too many students.”

In 2011 and 2014, the OCR issued “guidance” letters radically reinterpreting Title IX, a statute prohibiting sex discrimination at institutions receiving federal money. The highest-profile of these directives required schools to adjudicate sexual-misconduct claims under the low “preponderance of the evidence” standard of proof.

But as Boston College’s R. Shep Melnick has noted, that was “just a minor part of the OCR’s procedural requirements.” Worse were “the agency’s rules on cross-examination and appeals; its informal pressure on schools to institute a ‘single-investigator model’ that turns one person appointed by the school’s ‘Title IX Coordinator’ into a detective, judge, and jury; and the intense pressure for schools to show they are ‘getting tough’ on sexual assault.” As Mrs. DeVos observed: “It’s no wonder so many call these proceedings ‘kangaroo courts.’ ”

The OCR’s guidance letters were not even formal regulations, so that the department bypassed the public notice and comment rule-making process required by the Administrative Procedure Act. Mrs. DeVos promised that wouldn’t happen again: “The era of ‘rule by letter’ is over.”

To be sure, withdrawing the Title IX guidance, as the department is now expected to do, would not be enough to create a fairer system on campus. In a just-released study, the Foundation for Individual Rights in Education found only two of the nation’s 53 leading institutions (Cornell and the University of California, Berkeley) earned a score of greater than 60% for fair procedures in their Title IX tribunals.

Under Obama administration pressure, schools dramatically increased personnel in their Title IX offices, creating entrenched bureaucracies that will aggressively resist reform. And several states, including California and New York, have enacted laws designed to make it even more difficult for accused students to defend themselves. Thus the system will remain rigged against accused students until the Education Department issues specific, detailed rules to ensure fairness.

Still, discarding the Obama-era guidance would have two immediate salutary effects. First, it would eliminate one of universities’ standard defenses against lawsuits by accused students, which is to claim that they were merely doing Washington’s bidding.

Second, it would allow the department to implement Title IX policy through new, carefully considered regulations after a period of public notice and comment. The FIRE study identifies provisions that would be necessary to achieve a minimum of fairness in campus tribunals—the presumption of innocence, clear notice of alleged violations, sufficient time for the accused student to prepare his defense, impartial fact-finders, access to all relevant and exculpatory evidence, the right to cross-examine the accuser, a meaningful right to legal representation, and a meaningful right to appeal.

As four Harvard law professors— Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet and Nancy Gertner —argued in a recent article, a fair process requires “neutral decisionmakers who are independent of the school’s [federal regulatory] compliance interest, and independent decisionmakers providing a check on arbitrary and unlawful decisions.” The four had been among more than two dozen Harvard law professors to express concerns about the Obama administration’s—and Harvard’s—handling of Title IX. So too had 16 University of Pennsylvania law professors, as well as the American Council for Trial Lawyers.

Due process is, or should be, neither a liberal nor a conservative issue, and Mrs. DeVos is hardly alone in recognizing the shortcomings of the policy she inherited. But the accusers-rights organizations that dominated Title IX policy during the Obama administration have reacted with outrage. Laura Dunn, executive director and founder of SurvJustice, deemed the mere news of the speech a “winter” for Title IX. Another group, Know Your IX, demanded that Mrs. DeVos “enforce and support Title IX.”

In fact, on Thursday Mrs. DeVos made clear her determination to enforce Title IX fairly—to combat the new normal of discrimination against accused students as well as any residual discrimination against accusers.

Messrs. Johnson and Taylor are co-authors of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities” (Encounter, 2017).

 

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