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    September 2017

    Education Secretary Announces Intent to Change OCR Title IX Enforcement

    On Sept. 7, U.S. Secretary of Education Betsy DeVos announced that the Department of Education (ED) intends to replace Title IX guidance issued by the previous administration. Speaking at George Mason University, DeVos said the Department of Education (ED) plans to enter a notice and comment process to create new regulations to govern federal enforcement of Title IX as it applies to sexual misconduct.

    She didn’t indicate when this process might begin; once it does, however, finalizing regulations under the federal Administrative Procedure Act could take a year or more. She emphasized the importance of obtaining input from a wide range of stakeholders throughout this process.

    DeVos characterized the Obama administration’s approach to Title IX enforcement regarding campus sexual misconduct as “an era of ‘rule by letter.’” She emphasized the need to protect students who have been sexually assaulted as well as the due process rights of those accused of committing sexual assault. She did not, as many had anticipated, withdraw the April 2011 “Dear Colleague” letter (DCL) on sexual violence or subsequent Title IX guidance issued by the Office for Civil Rights (OCR) under Obama.

    UE member institutions that must comply with Title IX—including higher education and public K-12 schools—should continue to follow existing Title IX guidance until it is rescinded or replaced. In addition, higher education institutions still must comply with the Violence Against Women Reauthorization Act of 2013 (VAWA), the relevant portion of which is sometimes called the Campus Sexual Violence Elimination (SaVE) Act, and related regulations. VAWA codifies many of the DCL’s specific provisions, and DeVos gave no indication that ED will revisit the most recent VAWA regulations, which were finalized in 2014 and went into effect in 2015.

    Schools and colleges also continue to face civil liability under Title IX. Any changes to federal enforcement would not apply to Title IX litigation brought by individuals, which is governed by different standards.

    For details on the existing Title IX requirements as explained by OCR guidance and the Campus SaVE Act requirements, members should refer to UE’s Title IX and Campus SaVE Act Resources.

    By Hillary Pettegrew, senior risk management counsel


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