When Michigan native and Republican megadonor Betsy DeVos was confirmed as Secretary of Education in a narrow Senate vote in 2017, she sparked controversy and widespread criticism, including pushback from teachers’ unions and public school advocates. But with President-elect Joe Biden’s administration taking over in January, what her departure will mean for the University of Michigan and higher education policy is unclear.
DeVos’s impact on education policy has upended protocols at schools across the country. In May, DeVos issued updated Title IX regulations on sexual misconduct, fulfilling a major promise of President Donald Trump’s 2016 campaign. These changes require universities to hold live testimony hearings with cross-examination in campus sexual assault cases, a major shift in how many schools handled misconduct investigations.
The new policy prohibits direct questioning between students, which the University of Michigan has been doing since a 2018 court ruling mandating cross-examinations.
Though the court recommended this be done by personal advisers, the University opted to have students directly question each other.
University spokesperson Rick Fitzgerald clarified the University’s policy of having students directly cross-examine each other changed after the regulations were put in place.
“As required under the new federal regulations, is that the cross examination will be conducted by a student’s adviser,” Fitzgerald wrote. “The university will provide advisers to conduct cross-examination for those students who need them. Advisers appointed in student hearings will be outside attorneys provided by the university.”
Under the new regulations, universities are also barred from having only one official investigate complaints and will operate under a narrower definition of sexual harassment. DeVos has previously issued changes to Title IX guidance, including removing protections for LGBTQ+ individuals.
Now, only two months away from his inauguration day, Biden says he plans to make big changes.
When speaking to members of the National Education Association, the largest teachers union in the country, in July, Biden said he “can’t wait for the departure of Donald Trump and the chance to replace Betsy DeVos and the opportunity for us to make a whole lot of progress together.”
However, it’s unclear how Biden’s administration could reverse DeVos’s legacy or what lasting impacts the changes will have on the University.
Changes to policies for investigations of sexual assault allegations
The University already used cross-examination conducted directly between students after a ruling in the 2018 case Doe v. Baum. A female student filed a complaint in the University’s Office of Institutional Equity claiming a male student referred to as “John Doe” sexually assaulted her, but Doe’s lawyer argued his client did not receive the right of cross-examination, violating his constitutional rights.
Emma Sandberg, Public Policy junior and founder of Roe v. Rape, a student organization aiming at combatting sexual assault and empowering survivors, said she finds the University’s decision to have students question each other frustrating.
“It was incredibly disappointing and it made me very angry and that actually is what fueled my activism at U of M,” Sandberg said. “Just the fact that for the Doe v. Baum case they chose to have students interrogate each other, that just shows either an intent to limit … the number of complaints that are brought to the University or a complete lack of understanding of what it is like to be a survivor and go through a Title IX case.”
In September 2019, University spokeswoman Kim Broekhuizen told The Michigan Daily the policy was designed to promote equity.
“Questioning by personal advisors — often attorneys — is not allowed at U-M out of concern that not all students would be able to afford counsel,” Broekhuizen wrote.
There was a widespread backlash, with the ACLU of Michigan sending a letter calling for the policy to be changed while student groups protesting on-campus.
Ceciel Zhong, LSA sophomore and director of operations of Roe v. Rape, said survivor advocates disapprove of the cross-examination policy.
“The cross-examination policy is really traumatizing for survivors,” Zhong said. “It hurts reporting, and research has also shown that this kind of traditional and adversarial process doesn’t help in finding the truth of a sexual misconduct case.”
Supporters of DeVos’s rule said the new procedure would make investigations more balanced and fair for the accused. The policy was finalized in May.
“The reality is that civil rights really can’t wait and students’ cases continue to be decided now,” DeVos said.
Rebecca Veidlinger, an attorney specializing in Title IX and former University of Michigan Title IX investigator, said implementing new regulations takes time, as the institution must determine how best to change their procedures and more staff may need to be hired.
“It’s challenging for the administrators at the school to rewrite and rethink how their procedures are going to work,” Veidlinger said. “The new regulations required many institutions to hire additional staff and seek external investigators, external hearing officers so there’s a lot of administrative work that goes along with those changes. And in a place like University of Michigan, like many public institutions, when you make a policy change it has to be approved by several levels of administrative leadership.”
Defining sexual harassment
DeVos’s new regulations also adopted a narrower definition of sexual harassment, reducing the types of behavior recognized as harassment. Dating violence and stalking were added to the definition.
Under the new regulations, sexual misconduct must take place somewhere the college has “substantial control” for the complaint to be addressed by the school.
The previous Obama-era guidelines used a wider definition, specifying sexual harassment as any “unwelcome conduct of a sexual nature.”
The University’s interim sexual misconduct policy, outlined in an email from University President Mark Schlissel in August, changed the school’s definition of sexual harassment in response to the federal policy. The new definition said sexual harassment is conduct that is so “severe and pervasive and objectively offensive that it effectively denies a person equal access to education.”
Changes from Obama’s guidelines to DeVos’ rules on sexual assault investigations
Under former President Barack Obama, the DOE issued guidelines to colleges about how to handle allegations of sexual assault and harassment. DeVos used a multi-year, formal rulemaking process to change the procedures, making them harder to reverse.
With no prior notice, the DOE under Obama issued a “Dear Colleague” letter to colleges receiving federal money. This letter reinterpreted Title IX policy, giving the federal government authority to dictate how colleges must adjudicate sexual assault allegations, and making investigations more aggressive to support those alleging misconduct.
After DeVos repealed these guidelines, she replaced them by creating a formal rule-making process. Unless the formal regulations are repealed through congressional action, the Biden administration will have to go through the same rulemaking process to change them.
DeVos said she intentionally made the regulations related to sexual assault and harrasment difficult to change.
“We have been very methodical about our rulemaking and regulatory moves to do everything according to law so that if there are changes, they have to be done by law as well,” DeVos said.
Veidlinger said the process these regulations were passed through means it would be difficult for the Biden administration to change them without going through the same multi-year process. If Congress were to pass legislation elaborating on how schools should implement Title IX, that would also change the regulations, though that kind of action is unlikely.
“(The new regulations) were implemented in accord with the Administrative Procedures Act,” Veidlinger said. “When a regulation goes through that kind of process, it has the force of law. So to undo it, the Department of Education would have to go through that same administrative rule making process, and we could see with the DeVos regulations that is not something that happens quickly.”
Veidlinger also said the Biden administration could decide not to enforce the regulations passed under DeVos, though she said there are various problems with that approach.
“One thing the Biden administration could do is direct its agency not to enforce the regulations,” Veidlinger said. “So the regulations are still on the books, but the Department of Education could be instructed not to enforce (them). But that opens the Biden administration up to possible court challenges for not enforcing it, (and) I think schools would still feel some pressure to comply with the law as it’s written.”
Limiting protections for LGBTQ+ students
In her first year as education secretary, DeVos also revoked Obama-era guidelines advising schools on how to protect transgender students, which included allowing students to use restrooms corresponding with their gender identity. She specifically changed what identities are protected by the DOE under Title IX, removing gender identity and sexual orientation from the list.
DeVos confirmed in 2018 the DOE would not investigate complaints from transgender students alleging discrimination on the basis of gender identity.
Unlike the regulations on sexual assault and harrasment, Veidlinger said the guidelines related to how the DOE interprets sexual orientation and gender identity could more easily be changed.
“With respect to interpreting (Title IX’s application to discrimination based on) sexual orientation, those policy statements came through guidance documents and so those are more easily changed,” Veidlinger said. “(Guidance documents are) just a statement of policy interpretation provided by an administrative agency, and they don’t go through the Administrative Procedures Act process.”
Public Policy senior Allison Pujol, a former columnist for The Michigan Daily, is a liaison for Out in Public, an organization for LGBTQ+ Public Policy students. Pujol said protections for LGTBQ+ individuals are often considered a less prominent part of Title IX.
“I think people are sort of scared to talk about discrimination on the basis of sex because it goes into these broader discussions about … what you personally believe,” Pujol said. “I think that maybe scares people a little bit and makes them less likely to want to have a discussion about Title IX.”
Biden has discussed reversing DeVos’s policies on civil rights protections for LGBTQ+ students, pledging to reinvigorate funding for the DOE’s civil rights office.
Pujol said though she was hopeful protections for LGBTQ+ individuals would improve under Biden, she was not confident.
“My cautiously-optimistic expectation is probably a continuation of more of what we saw under Obama, but obviously not more of what we saw under Trump,” Pujol said. “I think that Biden will definitely make it so that discrimination on the basis of sex is something that he clearly sees as wrong, but I don’t think we’re going to see something huge.”
Changes under Biden
Biden has repeatedly promised to replace DeVos with a teacher.
“First thing, as president of United States — not a joke — first thing I will do is make sure that the secretary of education is not Betsy DeVos,” Biden said to NEA members in July 2019. “It is a teacher. A teacher. Promise.”
Reported options for Biden’s secretary of education include NEA President Lily Eskelsen García, American Federation of Teachers President Randi Weingarten and U.S. Rep. and former national teacher of the year Jahana Hayes (D-CT), among others.
When asked about how the University might handle future policy changes, U-M spokesperson Rick Fitzgerald said it would “not be appropriate for (the University) to speculate about future policy.”
Zhong said though it is unclear what changes will be made under the Biden administration, she suggested the University make policy changes to better support survivors of sexual misconduct.
“We don’t want the process to go back to the same as 2011 when the Obama administration put (out) its recommendation for schools,” Zhong said. “We are a different world now … And, frankly, colleges should provide necessary protection and separation for victims who request it. And I think only then can we actually trust the administration, as to (whether) they intend to eliminate gender-based violence on the campus.”
Daily Staff Reporter Emma Ruberg can be reached at firstname.lastname@example.org.
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