SurvJustice Joins Eleven Other Organizations to Request Correction and Rescission of DeVos’ 2017 Dear Colleague Letter Pursuant to the Information Quality Act
Today, SurvJustice joined eleven other organizations in petitioning a Request for Correction to Secretary of Education Betsy DeVos’ 2017 Dear Colleague Letter (“2017 DCL”). The 2017 DCL, signed by Acting Assistant Secretary for Civil Rights Candice Jackson, lists several misrepresented and false claims as a basis for rescinding the Obama-era 2011 Dear Colleague Letter and 2014 Question and Answer (“Prior Guidance”) documents, which both outlined sexual harassment as a form of sex discrimination in education, prohibited under Title IX.
The Information Quality Act (“IQA”), enacted in December 2000 via the Treasury and General Government Appropriations Act for Fiscal Year 2001, requires that the Office of Management and Budget (“OMB”) issue guidelines and standards that federal agencies must follow when sharing information with the public. The IQA also establishes a procedure to submit a Request for Correction when the information does not conform to the standards set forth by the OMB. The IQA guidelines specific to the Department of Education (“Department”) apply not only when sharing information developed by a federal agency, but also when utilizing third party research to support its official claims.
The Department’s withdrawal of the Prior Guidance relies heavily on factually inaccurate, uncited information in the 2017 DCL. This reliance on uncited, inaccurate information is a direct violation of the IQA and the Department’s own IQA guidelines.
On behalf of the twelve organizations on the petition, the Democracy Forward Foundation and the National Center for Youth Law formally made the Request for Correction, which includes the removal of inaccurate information given in the 2017 DCL. Without the false claims in the 2017 DCL, the Department’s decision to rescind the Prior Guidance is unfounded. Therefore, the petition establishes that the only appropriate recourse would be to undo the rescission entirely and reinstate the Prior Guidance.
In the petition, six of the Department’s incorrect statements are specifically outlined and rebutted:
The 2017 DCL provides no citations for any of these claims, which may be explained by the fact that each statement either directly contradicts existing research and polling of educational institutions that receive federal funding, or is unfounded without any such research. In the petition, the signatories cite surveys by the Senate Subcommittee on Financial & Contracting Oversight in 2014 and by the Foundation for Individual Rights in Education (FIRE) in 2011 which explain the minimal usage of clear and convincing evidence as the standard in institutions of higher education and the mostly equal opportunity for appeal rights.
The IQA permits affected persons to file a Request for Correction. The twelve organizations signing on to the Request explain that the 2017 DCL makes their jobs as advocates more difficult, specifically as they try to oppose schools switching to a higher evidentiary standard and one-sided appeals processes because of the incorrect suggestion that many schools were already doing so.
The Department has 60 days to respond to the Request for Correction, making the deadline August 26, 2018.
Authored by Olivia Gunther, SurvJustice Legislative Intern
Under the Obama administration, the U.S. Department of Education published a weekly list of schools that remained under investigation by the Office for Civil Rights (OCR) for their handling of sexual harassment pursuant to Title IX. Now, under the leadership of Secretary Betsy DeVos, the Department has not only changed how it releases this list but also stopped providing certain details about these cases entirely. The Department has also scaled back the scope of its Title IX investigations and has rolled back key Obama-era guidance regarding how schools should respond to reports of sexual violence.
Instead of releasing the weekly updated list of schools under investigation by OCR for potential Title IX violations, the Department has now started to publish an expanded version of the list on its website which will only be updated once a month. In addition to investigations related to Title IX, this new database also lists schools that are under investigation for potential violation of other civil rights laws, such as Title VI. Furthermore, it lists investigations into both secondary and post-secondary institutions.
On the surface, this updated database sounds like an effort by the Department to increase transparency with regard to its ongoing and resolved Title IX investigations. However, it is in fact quite the opposite. The new list omits key information related to these investigations. For example, unlike in previous years, whenever the database is updated, the Department does not disclose which investigations have been resolved, the manner in which those investigations were resolved, or the findings of those investigations. See The Chronicle of Higher Education.
The Department’s refusal to provide the public with these important details about Title IX investigations impedes upon the transparency that advocates waited years to see. When the Obama administration announced its decision to call public attention to universities under Title IX investigation in 2014, many hoped that this signaled an increase in transparency from both the Department and other government agencies. At the time, then-Assistant Secretary for Civil Rights at the Department of Education, Catherine Lhamon, said that the Obama-era decision initiated “the conversation about whether there are issues at a campus” and “[took] this issue out of the shadows and [made] sure that we have sunlight on it.”
OCR’s newfound lack of transparency goes directly against what the House of Representatives Bipartisan Task Force to End Sexual Violence advised last year. In July 2017, the task force sent a letter to Secretary DeVos, urging OCR to ensure transparency about OCR’s investigation process by continuing to make the list of schools under federal investigation publicly available.
“Ending sexual violence on our college campuses will never become a reality if college and university communities are kept in the dark,” wrote the task force co-chairs. They explained that continuing to release the list is “critical for both providing full information to students, parents, and communities, as well as for ensuring accountability when sexual violence occurs.”
In a 2016 Yale Law Journal article, Know Your IX Deputy Director Zoe Ridolfi-Starr declared that all students, including both those “who are making accusations of gender violence” and “students against whom such allegations are made,” share the common interest of “ensuring fair and transparent campus disciplinary processes.” While Ridolfi-Starr’s argument focuses mainly on transparency at the campus level, schools cannot be expected to be transparent if the governing body meant to hold them accountable does not do the same.
The lack of transparency currently shown by the Department de-legitimizes not only the complaints currently under investigation, but complaints at the campus level as well, thereby decreasing confidence in the system. In order to restore and strengthen the trust and faith of schools, survivors, and accused students, the Department needs to bring back the practices that began during the Obama-era, including publishing additional details about cases, particularly those that have been resolved. These practices are the only way to obtain a thorough evaluation of how both schools and the Department are currently handling Title IX cases, which is a vital first step in ensuring the fairness of these investigations for all parties involved.
Authored by Natalie Fitts, SurvJustice Policy Intern
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