Dear Secretary DeVos and Acting Assistant Secretary Jackson:
We write today to follow up on the Sept. 27, 2017 letter sent by thirty-two Senators about your decision to rescind the 2011 and 2014 guidance (“2011 guidance") on sexual violence and sex-based discrimination. To replace the 2011 guidance, you issued a Dear Colleague Letter and Questions & Answers document (“interim guidance"). The interim guidance is vague and often contradictory, and has caused confusion among college administrators, teachers, and students across the country. To provide some measure of clarity and to better understand the current thinking at the U.S. Department of Education (“Department"), we have a number of questions about how you intend to enforce the interim guidance and about the process you used to develop these new policies.
No student should have to worry about their safety or about being harassed because of their sex, yet numerous studies have demonstrated that far too many of our students experience sexual assault and sexual violence in school. One in five women experience sexual assault or sexual violence while on campus,[1] more than 20 percent of female high school students experience dating violence,[2] and 12 percent have been forced to have sex. [3] Unacceptably, these incidents of sexual violence in schools have been frequently swept under the rug, and too often schools do not live up to their obligation to ensure students have access to education in safe environments free from sex-based discrimination.
In order to address the epidemic of sexual assault on campuses, in 2011 the Obama Administration clarified schools’ obligation to address sexual assault and sexual violence under Title IX of the Education Amendments of 1972 (“Title IX"). This guidance unquestionably helped to ensure that survivors across the country were able to come forward to report incidents of harassment, discrimination, assault and violence and that schools understood their obligations to address those reports. With clearer protections in place, the number of complaints made to the Department’s Office for Civil Rights alleging sexual violence at postsecondary institutions increased from less than 15 in 2009 to more than 160 in 2015.[4]
On Sept. 22, 2017, you revoked the 2011 guidance, suggesting that it required schools to adopt procedures that “lack the most basic elements of fairness and due process, and are overwhelmingly stacked against the accused." [5] Yet the new interim guidance promulgated by the Department raises serious concerns about fairness to survivors and student safety, and threatens to derail the tremendous progress we have made in recent years to ensure schools take seriously their responsibilities under Title IX to effectively respond to complaints of sexual assault.
The interim guidance allows schools to make the appeals process available only to the alleged perpetrator but not the student who brings a complaint. The interim guidance provides schools with no helpful instructions about how quickly complaints must be resolved. The interim guidance suggests that interim measures may be optional rather than mandatory, and provides no information about what types of interim measures are appropriate in either institutions of higher education or in our elementary and secondary schools. And the interim guidance allows schools to offer mediation as an informal method of resolving a sexual assault complaint made by a student, despite the fact that the 2001 guidance issued by the Department, which this guidance claims to rely on, states that mediation is inappropriate for incidents of sexual assault.[6]
Moreover, the Department has been extremely unclear with schools, the public, and this Committee about its intentions regarding Title IX guidance and rulemaking. On September 7, 2017, Secretary DeVos declared, “the era of the rule by letter is over," presumably referring to the use of sub-regulatory guidance to clarify schools’ obligations under Title IX. [7] However, just a few weeks after Secretary DeVos announced the Department was planning to no longer use guidance, Acting Assistant Secretary Jackson issued new substantive guidance. At the same time, the Department announced that it intends to undergo rulemaking on Title IX, but has not provided any timeline for when that will begin.
All of these actions raise serious concerns about how the Department and OCR intend to enforce Title IX and ensure students’ rights and safety are protected. To clarify a number of procedural and substantive issues related to the interim guidance and potential rulemaking, please answer the following questions no later than Oct. 26, 2017:
If you have any questions about this request, please contact Carly Rush or Laurel Sakai with the Health, Education, Labor, and Pensions Committee at 202-224-0767.
