Bipartisan Congressional Group Urge DeVos to Retain Preponderance Standard

In the wake of Secretary of Education Betsy DeVos's announcement earlier this month that the Department of Education plans to reconsider its interpretation of institutional responsibilities under Title IX to address sexual misconduct, I thought it was notable that yesterday a group of ten Members of Congress wrote to DeVos to urge her to retain that requirement that institution decide sexual misconduct cases using a preponderance of evidence standard.  Notably, the signatories consisted of five Republicans and five Democrats, as well as a mix of men and women. The letter argued that the preponderance standard (which asks whether there is more evidence in support of the charge against respondent than against) balances the rights of students who have or will face sexual violence against the the rights of students who are accused of sexual misconduct, over which the signatories share DeVos's concern. Preponderance is the most equitable standard, the letter maintains, because it recognizes that both complainants and respondents have a stake in the outcome. They point out that it has been favored in the past by Democratic and Republican administrations, both of which used their enforcement authority to require it of institutions long before the agency's 2011 Dear Colleague Letter publicized that aspect of the Department's interpretation of Title IX. In stark contrast to DeVos's painting of the DCL as having created a failed system, the letter points out that colleges and universities have "made great strides" to address sexual violence, thanks to the DCL and student advocates. They hope that the Secretary's upcoming process for revising it "build upon" rather than undermine this "hard won progress."

The letters signatories are:

Annie Kuster (D-NH)
Patrick Meehan (R-PA)
Jackie Speier (D-CA)
Susan Davis* (D-CA)
Ted Poe (R-TX)
Pramila Jayapal (D-WA)
Tom Reed (R-NY)
Debbie Dingell (D-MI)
Carlos Curbelo (R-FL)
Lynn Jenkins (R-KS)

* I note that Representative Davis is also a member of the House Committee on Education and the Workforce, which has authority over the Department of Education's budget. This does not give her a ton of leverage, since she is just one member of the minority party, and since DeVos would probably be fine with most any cut to the agency's budget.  But if more members of that committee are persuaded to take a stand against rolling back Title IX, and they can find a way to use finances as leverage over the Department, that is one potential way for Congress to serve as a check on the executive branch on this issue. The other option Congress has, of course, is to codify the preponderance standard, or any other aspect of Title IX that exists as regulation or subregulatory guidance, into the statute itself.