With her declaration that “the era of rule by letter is over,” Secretary DeVos announced that the Department of Education will begin a formal rulemaking process to create guidance for campuses to follow in responding to campus sexual misconduct.
So what, exactly, is notice and comment?
In short, it is a common rule-making process which typically begins with publishing an “Advance Notice of Proposed Rulemaking” in the Federal Register to start the notice-and-comment process, inviting public comments on the issues. The Department of Education may also initiate a negotiated rulemaking proceeding by inviting members of interested groups to meetings where they try to reach consensus on a proposed rule.
After the Advance Notice of Proposed Rulemaking process, the next step would be for the Department to publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register to give the public an opportunity to comment on the proposed rule created through the rulemaking procedure. After these final comments are received and considered, the Department issues its final rule which then become federal regulation.
It has been a matter of significant contention, especially from libertarian groups such as the Foundation for Individual Rights in Education, that the now famous Dear Colleague Letter (DCL) of 2011 was illegally promulgated regulation because it did not undergo the notice and comment process. DeVos has taken a similar stance, characterizing the DCL as “issued from the desks of unelected and unaccountable” administrative officials.
Despite rampant speculation across the higher ed world anticipating announcement of more sweeping changes, DeVos’s declaration of her department’s intent to initiate a rulemaking process through notice and comment was the only concrete action announced. However, her comments were interleaved with significant clues regarding areas of concern that the rules will likely take up, including:
- the preponderance of evidence standard, with DeVos describing the 2011 DCL as “forc[ing] the lowest standard of evidence” on campus disciplinary processes;
- interim accommodation measures that impact the student accused of misconduct;
- possible narrowing of definitions of prohibited conduct; and
- due process considerations that may adopt more of the procedures of the criminal justice system.
This last point is worth additional comment. Throughout her speech today, DeVos used language such as campuses acting as “judge and jury,” noting that most campus adjudication processes do not include “cross-examination” and that individual students are not always represented by legal counsel. These references, combined with her specific calling out of reports from the Criminal Justice section of the American Bar Association, the American College of Trial Lawyers, and the Harvard Law School letter—all of which argue for features of criminal justice processes to be imported into campus disciplinary processes addressing civil rights violations (per Title IX)—are unmistakable signals to the world of higher education regarding her intent.
It is worth noting that her references to helpful guideposts in the rulemaking process included not a single professional group or individual whose expertise lay in student affairs, student conduct, or advocacy. Certainly, campus-based sexual assault advocates and respondent support persons (including Title IX Coordinators, Deans of Students, Student Conduct professionals, and others) have much hard-earned wisdom to share in the development of new guidance. Now is the moment to sharpen your pencils and prepare to share your expertise. As DeVos’s opening statements remind us all, with debate comes responsibility.
CPN UPDATE: ED press secretary, Liz Hill, subsequently issued a statement that the Department intends to release temporary guidance on Title IX that campuses will be directed to follow until the rulemaking process is complete. We will continue to follow this evolving story and release updated information as it becomes available.
Holly Rider-Milkovich, MA
Holly is the Senior Director of Prevention Education at EVERFI. Previously, Holly directed the Sexual Assault Prevention and Awareness Center at the University of Michigan. Holly provided expertise to President Obama’s White House Task Force on best practices for campus-based sexual and intimate partner violence prevention and response efforts and represented four-year colleges and universities in the federal negotiated rulemaking committee for the 2013 Violence Against Women Act Reauthorization. She brings over two decades of experience in violence prevention and response and in higher education to her role at EVERFI.
Karen Peterson, J.D.
Karen Peterson is a legal editor at EVERFI. Prior to joining the editorial staff, she spent several years in private legal practice. Now she applies her legal skills to research and writing on higher education law to educate college students and employees about campus safety issues. Her studies focused on jurisprudence and social policy, earning a BA from UC Berkeley and a JD from the University of San Francisco Law School