September 24, 2018

September 24, 2018

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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, Public Education Attorney
Partner

John R. Przypyszny counsels institutions of higher education, education companies as well as accrediting agencies on the broad range of legal issues and education law related issues that impact their institutions and businesses on a day-to-day basis. He advises clients on education law matters involving the U.S. Department of Education, accrediting bodies, state agencies and other government regulators. He also has extensive experience advising institutions of higher education on the statutory and regulatory requirements of federal student financial aid...

(202) 842-8858
Jonathan Tarnow, Education and Government affairs lawyer, Drinker Biddle
Partner

Jonathan D. Tarnow advises clients on a wide range of education law matters involving the U.S. Department of Education, accrediting bodies, state agencies and other government regulators. He has extensive experience advising public, non-profit and proprietary institutions of higher education on the statutory and regulatory requirements of federal student financial aid programs under Title IV of the Higher Education Act, and has represented institutions in Title IV compliance reviews and audits, including administrative hearings and appeals related to findings of non-compliance. Jonathan is a partner in the firm's Government and Regulatory Affairs Group and a member of the Education Team and the Privacy and Data Security Team.

He frequently represents private equity funds, private investors, publicly traded and privately held education companies, and financial institutions that serve postsecondary educational institutions on transactions in the education sector. This includes purchases and sales of institutions or their assets, conversions of private institutions from proprietary to non-profit status, credit facilities to support acquisitions or ongoing operations, and other complex transactions involving colleges and universities.

(202) 354-1357