Jeannie Suk Gerson in The New Yorker:
Over the summer, anticipation over what the Education Department might do about campus sexual assault heightened as the Education Secretary, Betsy DeVos, held high-profile meetings with groups advocating for the interests of universities, sexual-assault victims, and accused students—including one men’s-rights group accused of harassing women online. DeVos’s civil-rights head, Candace Jackson, alarmingly, told the Times that “90 percent” of campus accusations are over drunk or breakup sex.
… The non-binding status of the Dear Colleague Letter meant that a new Administration could easily retract it with another letter, much in the same way that the Trump Administration retracted the guidance on transgender students earlier this year. But DeVos pointedly did not do this, declaring, “The era of ‘rule by letter’ is over.” Instead, she announced that the agency would engage in precisely the notice-and-comment rulemaking process that the Obama Administration chose to skip.
Judging by DeVos’s speech, what has been portrayed as a rollback of Title IX is really an embrace of a framework of compatibility: one in which Title IX seriously addresses sexual violence and also requires fairness to the accuser and the accused. (Disclosure: Last month, I joined three feminist law faculty at Harvard in submitting a comment to the Education Department urging policy revisions along these lines. I was also a signatory to an open letter from twenty-eight members of Harvard’s Law School faculty, published in 2014, that DeVos approvingly cited in Thursday’s speech.) DeVos drew on the stories of victims and accused students to reject the idea that the system could serve only one or the other. “Any school that refuses to take seriously a student who reports sexual misconduct is one that discriminates. And any school that uses a system biased toward finding a student responsible for sexual misconduct also commits discrimination.” Since 2011, dozens of courts have made clear that schools that do not give accused students a fair process may also be committing sex discrimination under Title IX. …