DeVos Rescinds Disastrous “Dear Colleague” Policy on Campus Sexual Misconduct

National Association of Scholars

The National Association of Scholars congratulates Education Secretary Betsy DeVos for fulfilling her earlier decision to restore the rule of law and justice to campus sexual assault investigations. On September 22, the Department of Education (DoE) rescinded the 2011 “Dear Colleague” letter that, by administrative fiat, required colleges and universities to remove due process protections from students accused of sexual misconduct.

In place of the Dear Colleague Letter, during a period of public commenting, the DoE released new interim guidance – a set of 12 questions and answers for colleges and universities on how to handle sexual misconduct reports. The guidelines seek to make this process fair for both complainants and the accused. The organization Stop Abusive and Violent Environments (SAVE) has found 5 benefits of the interim policy, including “Enhanced Credibility of Complainants” and “Fewer Appeals, Lawsuits, and Repeat Hearings.”

The 2011 “Dear Colleague Letter” created a disastrous system for investigating reports of sexual misconduct. That rule reduced the standard of evidence for establishing guilt, prevented the accused from seeking legal help, and inappropriately gave colleges, not law enforcement, the role of evaluating cases and rendering justice. It collapsed the safeguards that separate police functions from judicial functions and from counsel to both parties. The Letter also bypassed both legislative authorization and regulatory rule-making. Instead the head of the DoE’s Office of Civil Rights (OCR) simply declared a new set of rules backed by draconian punishment for any college or university that failed to uphold them.

The National Association of Scholars welcomes Secretary DeVos’s decision to retract the Dear Colleague Letter. NAS also urges her to continue to dismantle the machinery of Star Chamber injustice, which has by now been built into campus bureaucracies nationwide. Moreover, the DoE’s new guidance states that colleges that entered into “voluntary resolution agreements” to conform with the requirements of the Dear Colleague Letter must still adhere to those agreements.

NAS calls on Secretary DeVos and the Department of Education to issue new regulations that link federal funding for colleges and universities to robust, externally verified enforcement of due process rights for students and faculty. NAS will also redouble its own advocacy for the Freedom to Learn Amendments to the re-approval of the Higher Education Act, which will prevent a future administration from reverting to kangaroo-court policies.

“For too long the federal government has coerced colleges to deprive students of liberty and due process,” said NAS president Peter Wood. “America needs safeguards against such coercion. Secretary DeVos has taken an important first step toward better protections for students.”

Image Credit: Gage Skidmore.

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