November 20, 2017

November 17, 2017

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Secretary DeVos Announces Intent to Revise Title IX Guidance and Enforcement Policies

In an address at George Mason University on September 7, 2017, Secretary of Education Betsy DeVos announced that the U.S. Department of Education (the “Department”) and its Office for Civil Rights (“OCR”) will initiate a process to formally revise the Department’s current Title IX guidance and enforcement policies. Secretary DeVos indicated that the Department will undertake a notice and comment rulemaking process but did not provide details regarding the timeline for comment submissions or the structure of any proposed rule.

In April 2011, the Department issued a Dear Colleague Letter (“DCL”) that expanded prior policy guidance regarding Title IX’s prohibition on sex-based discrimination in education programs receiving federal financial assistance. Among other things, the DCL established specific procedural and evidentiary standards that schools are required to apply when evaluating claims of sexual misconduct. Since then, OCR has continued to issue sub-regulatory guidance letters to institutions concerning their internal processes for resolving complaints of sexual harassment, assault, or other discriminatory misconduct.

Declaring that “the era of rule by letter is over,” Secretary DeVos expressed concern about the effect of such “quasi-legal structures” and asserted the value of a formal and unified regulatory approach to sexual assault and harassment allegations in educational settings. She emphasized a need for all parties to receive notice and an opportunity to be heard, stating that “one person denied due process is too many.”

While recognizing the profound negative impacts of sexual misconduct, the Secretary also observed that enforcing ambiguous or excessively broad definitions of assault and harassment harms both students and institutions. “In order to ensure that America’s schools employ clear, equitable, just, and fair procedures that inspire trust and confidence,” she said, the Department “will launch a transparent notice-and-comment process to incorporate the insights of all parties in developing a better way.”

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About this Author

John Przypyszny, Drinker Biddle Law Firm, Government and Regulatory Affairs Attorney
Partner

John R. Przypyszny is a partner and leads the Government and Regulatory Affairs Practice Group's Education Team.  His practice concentrates on institutions of higher education, the companies and investors which comprise the evolving education market and institutional and programmatic accrediting agencies.  John has extensive experience in dealing with the U.S. Department of Education's regulations and institutional eligibility requirements.

John has experience in handling a broad...

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Jonathan Tarnow, Drinker Biddle Law Firm, Government Affairs Attorney
Partner

Jonathan Tarnow is a partner on the Education Law team in the firm's Government & Regulatory Affairs Practice Group. He advises educational institutions, publicly-traded and privately-held education companies, private investors and third party vendors on numerous laws and regulations governing the postsecondary education industry, specifically as related to participation in the federal student financial assistance programs, accreditation, state educational licensing, student records privacy and related matters.

Jonathan has served on the Board of Trustees of The George Washington University, where he was particularly active on the Student Affairs and Information Technology Committees.

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