The DeVos Rule provides colleges and universities with a detailed and uniform modus operandi on how they must handle gender discrimination, sexual harassment, and sexual assault disputes.  The new regulations emphasize fairness, equitability, due process protections, and extensive supportive measures for all parties, all of which have been missing from the rescinded Obama-era guidance that the new Rule supersedes.  In contrast, the well-intentioned Obama-era guidance was conspicuously undetailed, constitutionally and legally dubious, and decidedly unfair toward the accused.

I experienced the Obama-era guidance shortcomings in a 2014 Title IX debacle, and the DeVos rule addresses all of them.

Even before release of the DeVos Rule, letters were mailed to Secretary DeVos from 18 Attorneys General, 49 House members, and three U.S. senators (all Democrats), exhorting that the Rule be suspended for the disingenuous excuse that its implementation by campuses closed by the COVID-19 pandemic might be excessively burdensome, although campuses have been expecting the new Rule already since November 2018.

This excuse was clearly a pretext aimed to undercut the DeVos Rule, but their entreaties were rendered obsolescent when it was released in early May. On May 22nd, a letter cosigned by 105 members of the House of Representatives was sent to Secretary DeVos demanding revocation of the DeVos Title IX rule.

The May 22nd letter is profoundly disappointing and warrants debunking. The letter fails to grasp that the purpose of Title IX is to grant students equal access to their educations, not to protect “survivors” or to provide a platform for restorative justice.  The House letter also fails to appreciate, or even acknowledge, that the new Rule restores the constitutional safeguards of due process and free speech to the conflict resolution process, protections that have been commanded by recent court decisions.

The letter also contains a litany of hyperbole, unsubstantiated statements, misstatements, and inaccuracies and even revisits the COVID-19 ploy.  Statements such the Title IX rule “will gut protection for student survivors of sexual assault,” “effectively turn Title IX on its head,” “jeopardizes the civil rights of students,” “reinforces the false and toxic stereotype that survivors, particularly women and girls, tend to lie about sexual assault,” “makes it harder for victims to come forward,” or “unduly hinders many schools from responding effectively to many incidents of sexual violence” are unsupported by argument or evidence, inexplicit to the point of being essentially meaningless, inflammatory, and inaccurate.

Finally, several statements in the House letter to Secretary DeVos, also unsubstantiated by any line of reasoning or evidence, actually warrant refutation. For example, the new rule is not “needlessly complex and burdensome.” It is a carefully thought-out constitutional and legal primer for how schools should conduct a Title IX investigations fairly and how it should support all its students if an allegation of an infraction is made.

The melodramatic assertion that the new Rule “flies in the face of common decency to require survivors to endure live hearings with live cross-examination by the perpetrator’s advisor of choice,” ignores the fact that cross-examination in a live hearing setting is a Constitutional requirement to which 150,000,000 other women in this country must abide when making a sexual assault allegation and ignores the fact that cross-examination has long been considered the greatest single legal engine that we have to truth-finding—the aim of any dispute resolution.

Meanwhile, the statement that “it is simply unjustifiable for the Department to require schools to dismiss many complaints of sexual harassment” is absurd.  In fact, the new Rule mandates that a school must robustly address every complaint of sexual harassment but asserts that a school cannot formally investigate a complaint that does not rise to the level of sexual harassment. This is reasonable.

Finally, the use of the term “survivors” or “perpetrators” in context of approaching an investigation is prejudicial and has no place in any system of jurisprudence. It’s just wrong.

Overall, the House Letter to Secretary DeVos does not make a compelling case for Secretary DeVos to rescind the new Title IX rule, and she will be justified to ignore it.