In this episode of At The Bar, Inez and Jennifer talk with Betsy DeVos about new Title IX rules that threaten to eviscerate due process, free speech, and women’s sports. The former Secretary of Education also weighs in on school choice and previews her forthcoming book, Hostages No More: the Fight for Education Freedom and the Future of the American Child.

Hosted by Inez Stepman of Independent Women’s Forum and Jennifer Braceras of Independent Women’s Law Center, At The Bar is a virtual happy hour conversation about issues at the intersection of law, politics, and culture.


TRANSCRIPT

Inez Stepman:

Hi, and welcome to At The Bar, our virtual happy hour conversation about issues at the intersection of law, politics, and culture. I’m Inez Stepman with [inaudible 00:00:36] and guest, and we’re going to continue the discussion about Title IX because it is going to be such a monumental shift in our law if these potential regs end up going through. And we’ll get to all of that if anybody remembers from our last conversation.

But first I want to introduce our fabulous guest today. We are talking today with Betsy DeVos. She’s dedicated her career to addressing the many problems with the American education system. For more than three decades, she’s been one of the leading advocates for educational freedom and choice, including as the former chair of the American Federation for Children, as well as the Philanthropy Roundtable, and culminating in her service as the 11th Secretary of Education under President Trump. An experience she has now written about in addition to plenty of policy solutions, in the education space, in her soon-to-be-released book Hostages No More: The Fight for Education Freedom and the Future of the American Child.

She’s also the mother of four and grandmother of 10. So she definitely has more than a little skin in the game of the future of American education. Betsy DeVos, thank you so much for joining us today on At The Bar.

Betsy DeVos:

Well, thanks, Inez and Jennifer, it’s great to be with you. After a little technical difficulty, I’m sure it’s good to be with you.

Inez Stepman:

Technical difficulties, unfortunately, are unavoidable. I’m just going to jump into our Title IX discussion today. I think, undoubtedly, one of the biggest triumphs of your tenure as secretary was restoring some sanity to the Title IX enforcement process, especially in the areas of free speech and due process. Why did your administration think that these changes were actually necessary, that you guys made back when President Trump was in the White House?

Betsy DeVos:

Well, Inez, it was clear that the dear colleague letter that our predecessors had sent to all higher ed institutions, well, all educational institutions across the country, was just wreaking havoc in terms of actual student lives. And I heard firsthand from students who had been on the receiving end of sexual misconduct, and those who had been falsely accused. And for all of them, they said the process that they underwent was not working, it did not work. We know that there were hundreds of lawsuits filed after proceedings that were unfair, that didn’t consider due process. And then, in many cases, the accuser having to relive a lot of the pain of a previous proceeding.

And so it was very clear, also, listening to many of the administrators that were charged with actually trying to follow the prompts of this dear colleague letter, that we had to do something significant to really put a balanced and fair framework and approach in place. And so that led to the two and a half year proceeding to put the regulation into motion.

Jennifer Braceras:

I’m interested in your statement that you spoke with a lot of administrators, Title IX administrators. I have always believed that as much as the dear colleague letter that was put out by the Obama administration sort of cemented this madness, that it was the colleges themselves, or at least certain people at the colleges and universities that were driving the process. And that they themselves wanted the political coverage of the dear colleague’s letter or to be able to refer to it as a mandate to justify something they were already doing. Is that analysis wrong? Did you find that to be the case? Did you find them to be willing partners in trying to establish a fair process?

Betsy DeVos:

Well, I think that in many cases that was the case that there was a bent and a bias that many Title IX administrators wanted to see bolstered, as you said, to support their proceedings and their method of handling. But there were a lot of others who really didn’t find it very fair, or they felt that there were a lot of elements that were very wrong. And, yet, they felt that this letter, which didn’t have the force of law, but in effect did because the Office for Civil Rights really held financial resources over their head, or investigations, or all kinds of the tools that OCR uses to really go after offenders in their minds. And so it was, I think, very important, I know it was very important after hearing from a number of Title IX administrators, but more broadly chief counsels for institutions, presidents of institutions.

There were quite a few who would quietly talk to me and encourage us to proceed and to really go through the rule-making process, many of whom were very reluctant to say anything publicly. But I know from many conversations that there were a lot of folks in the higher ed world that were very, very happy with the fact that we took the time, did the hard work, and really solicited a lot of advice and counsel and input from the widest range of individuals. I mean, it was the 120 some thousand comments that we had to respond to in the process. And so it was welcome, though, it was not universally welcome.

Jennifer Braceras:

Well, I do think that anybody who actually read the regulations put out by the Department of Education in your tenure, can see that they are very thoughtful, very even-handed, and for the most part, simply restate, or administratively codify Supreme Court precedent. There was nothing radical about it. It was just articulating, for people who may not have understood the contours of sexual harassment law, what exactly it means, what exactly is required by universities to make sure that people are treated fairly, and that these claims are heard.

So I thought it was very rational. There was a lot of pushback and hyperbole from certain segments, including some segments of the higher ed world, who, Inez and I will recall very clearly, tried to stop the regulation from coming out on the grounds that we were in a global pandemic as if that had anything to do with it. They tried to use COVID to stop them from coming out and then tried to use COVID as an excuse for-

Betsy DeVos:

To not-

Jennifer Braceras:

… not implementing.

Betsy DeVos:

Right.

Jennifer Braceras:

Do you think, I know, it’s hard to predict, but I wonder had Joe Biden not won the election, whether those universities would be complying with these rules? Or whether they would be surreptitiously doing their own thing or fighting them, or what have you?

Betsy DeVos:

Well, I think for some institutions, no matter what happens, it’s going to be a difficult progression to get them to actually follow the law. And these regulations now stand as law, have the force of law. But then again, if they’re very honest with themselves and they look at the hundreds of suits that have been brought, and I think about the suit that was in, is it the fourth? The one that included the University of Michigan, where the court’s opinion, I think in some cases went further than our regulation did. And so, as long as the regulation stands as law, these institutions are going to have to enforce the law, the rule. And if they don’t, I mean, individuals are going to bring cases that I think they’re going to have a hard time defending, not following the regulation properly.

Inez Stepman:

As we look at these sort of media stories that have been coming out, one from The Washington Post, initially, then from Politico, most recently, kind of outlining what this current administration is attempting to do. And I really want to commend you here, you guys really did the sort of golden exemplar of what an actual notice and comment rule-making procedure, APA procedure, for putting out a rule was. And I think that’s the reason, part of the reason, this administration, it’s taken them this long to actually try to even start to undo some of the things that the previous administration had did. Because you guys, you dotted your Is and crossed your Ts, and that administratively has made it harder for them to undo these changes.

Nevertheless, we’re seeing these media reports saying that imminently, we will be getting a new proposed rule that will undo these changes on due process, on free speech, and the contours of harassment. Also, on the definition of what sex means in Title IX. And I’m just going to pull up the language of Title IX that we’re talking about here. So no person in the United States shall, on the basis of sex, be excluded from participation and be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Somehow out of that sentence, it appears that this new administration is interested in providing, essentially, federal civil rights protection to any student who identifies as one sex or the other, and thereby sort of obliterating all the issues that we’re always hearing about in the news now. Whether, for example, female sports should be sex-segregated. Whether women have the right to compete only against biological women in the swimming pool or at a track meet. Or whether they have the right to privacy in some of these educational institutions to have single-sex spaces, for example, in locker rooms. What do you anticipate these new regulations coming out are going to do? And what are your sort of worries about how they’re going to shape higher ed going forward?

Betsy DeVos:

Well, I would just observe that this is the second major time that the Office for Civil Rights, first under President Obama’s administration, and now under President Biden’s administration are really trying to weaponize Title IX in a way that is totally counterproductive, ultimately, for the protection of both genders, of women being able to access education and sports equally. And now this, at least, the rumored proposal to extend it to suggest that any biological male that decides he wants to compete as a woman would have the opportunity to do so. You can’t say you are for the intent of Title IX, which is allowing both sexes to equally access education and sports, and at the same time, say, “It’s okay for a biological male to compete on a woman’s team.” They’re totally contradictory to one another.

And so I think this is just further evidence of how far to the left of their party they are playing the tune and singing the song. And I think it’s going to really, if indeed the proposed rule includes that language, I think there must be huge blowback on that. And we can’t sit and let that sort of progress and let a federal agency, basically, change the definition of sex through a process or a procedure like this.

Jennifer Braceras:

I think that most people in the public, when they hear the phrase Title IX, they think of it as a sports law. They don’t really realize that there are all these other components of it. It’s both, as Inez said, very simple, a very simple sentence, and yet complex because it applies to every aspect of the educational experience. And I think that’s part of the problem is that people think it’s just this one thing, they don’t realize it impacts due process and sexual harassment, freedom of speech, and these other aspects of the educational environment, where men and women could potentially be treated unequally.

How do we educate people so that they understand that this very simple statute, that really is an attempt to call for equal treatment of the sexes? How do we explain to people that the Biden administration is on the cusp of using that simple sentence to radically rewrite social policy at the K through 12 and collegiate level?

Betsy DeVos:

Well, I think the most straightforward and simple way is to talk about the sports aspect of it, right? Because it’s the simplest, it’s the most easy to understand. I think most people say it’s simply not fair to say a biological male competing on a woman’s team is a fair thing. You’ve got thousands, tens of thousands of young women across the country who are working hard at their sport, playing on their high school’s team, looking forward, hopefully, to some kind of a scholarship to play in a college. And then suddenly we could just have to compete against a biological male, that have all kinds of physical advantages, assuming they’ve gone through puberty. They simply have physical advantages, nobody can deny that. And so I think really focusing on the sports aspect of it is the easiest way to communicate this.

Some of the discussion around free speech and what constitutes sexual harassment, which was an important part of the rule, as you know. We defined sexual harassment and used Supreme Court precedent in doing so, first time it had been done. And so it puts a much clearer frame around what is speech, and what is actually sexual harassment and sexual misconduct. But with regard to the question around, how do we bring people’s attention to this? I think the sports aspect of it is probably the easiest to explain in an elevator pitch or in a short conversation.

Inez Stepman:

It’s so obvious, it’s hard to believe that we’re actually having sort of this national debate. When, for example, everyone saw Lia Thomas in the pool competing against biological women. It’s very, very clear the advantage that gives a competitor if they’re biologically male. I think you’re right.

Betsy DeVos:

Well, and I was a swimmer, so I could relate. I competed through high school. I didn’t swim in college, but as a good swimmer, not a great swimmer, if I knew I was going to have to compete against biological males on my own team or in a high school setting, think about all the young women who just would simply not even go out for athletics. Because they don’t have maybe a hope of getting a scholarship, but they want to be on a team competing and have the satisfaction of winning. Well, it would be, I think, a real downer for a lot of young women who want to have that experience, but to know that was something they were going to have to deal with.

Jennifer Braceras:

We’ve actually had an opportunity to talk to a lot of these young women. And what I hadn’t realized fully is the emotional impact that this has had on them, on the other-

Betsy DeVos:

Sure, sure.

Jennifer Braceras:

… Ivy League swimmers and NCAA swimmers that had to compete against Lia. Because it wasn’t just a question of whether they could win, that was difficult enough, but to have themselves compared, as one mother told me, “To compare their own strong bodies to an impaired male body was really devastating. To get up there and say, ‘I have to compete against an individual who’s deliberately reducing their performance.’ And that is the way a strong, healthy, athletic, young woman is supposed to compare themselves to that.”

And that somehow really devastated them, their self-image, their body image, and the emotional consequences, I think, really cannot be overstated here. We talk a lot about inclusion and making everybody feel welcome, but nobody seemed to be concerned about the emotional feelings and the inclusion of the girls that had trained so hard for so many years.

Betsy DeVos:

Right. Yeah, no, that’s absolutely right.

Inez Stepman:

One of the great ironies of this whole situation is that this law that was passed to ensure opportunities for women in higher education, is now being used to take away a lot of those same opportunities. But while we still have you here, Betsy, I really wanted to ask you about something. In many ways, you were on the vanguard of what I would call these kinds of mob tactics. After your confirmation hearing, and then you were sort of going about the business of being the secretary, for example, visiting schools, and there would be mobs that would show up to yell and scream and protest everywhere that you went.

So whether you were giving anything remotely political or not, it was, they were following you, like I said, to just random school visits when you were going around schools in Washington DC, for example. Now we’re seeing those protest tactics being turned against the Supreme Court justices, after this leak. And I was wondering if you had any thoughts about sort of being the recipient of these kinds of tactics, how this is going to affect not only political discourse but the law? This is a legal show. We’re talking about the interpretations of Title IX, we’re talking about legal issues. Do you worry that these kinds of tactics are going to really impact our ability to neutrally implement the law, for example?

Betsy DeVos:

Well, I’m very hopeful that they do not, and that the justices, as we’ve continued to hear, that they are committed to following the law, and wherever that happens to lead. I know, in my case, when I was faced with the opposition and the mobs in multiple locations, it was easy for me to stay focused on the fact that what we were doing, what I was doing to lead the department was focused on doing the right thing for students.

And it was really clear that a lot of the mob that was opposing me at every turn was more interested in a system or in adult issues or in not changing things, even though change is indicated by every measure. And so it was easy for me to stay focused on doing the right thing for students and continuing to advocate for kids, for students, for young people, for their futures. And I’m confident that the Supreme Court justices are also committed to the law and to their profession to make sure that what the mob tries to sneak in and attack in ways that are very unseemly, that they will stay focused on their job at hand. And I have confidence that will be the case.

Jennifer Braceras:

It makes it very difficult, actually, to teach students and young people how to debate issues civilly. And I worry about the impact it has on teachers and schools who might want to have their students discuss these issues. And students have to be able to feel free to state an opinion or to argue a case, from an academic standpoint, without feeling that they’re going to be mobbed by other students. So it’s the implications are disastrous for law, but also for education itself.

Betsy DeVos:

No, absolutely. And I mean, I think the intimidation tactics and the marching on individual’s homes is a bridge too far. And I hope that law enforcement will actually occur in this case and will enforce the law that does say, “Justices are not to be intimidated.” But I agree that the discourse and the ability to exchange ideas in a non-threatening atmosphere has been disappearing by the day. But I think we all here can be committed to modeling how we can do that. And to being, I think, to not reacting in kind when we are attacked, but instead turning around and continuing to talk about how important it is for us to be able to talk about these ideas.

I just was at a mostly day-long meeting today where lots of young people were participating, and it’s interesting to hear how reluctant they feel to actually express their opinions on things because they have been so beaten down in multiple senses in their education environments. Which brings me around to my advocacy for freeing students from a system that has been one size fits all for over 175 years, and to a system of education, freedom where the money for those students follows the students. And where we have a literally creation of multiple different kinds of education opportunities. And supporting teachers who need that same kind of freedom in an education setting to be able to do the thing they do best, which is help students learn.

And I’m of the firm belief that with a few years of education freedom and real education freedom for all students in K-12 education, that we would see an entirely different atmosphere, quickly develop as a result. Because parents, families will find the place that this is going to be the best for their child. And if they don’t find one, they’ll help be part of creating new ones. And that will be the best situation for students and also for great teachers, who also need that same kind of environment.

And I think we’ve tried to do the same thing the same way for decades and decades and expect different results. And the only way we’re going to actually make progress is to try something completely different. So I look forward to having more of those conversations with those who are defenders of the system, as it exists today, and really challenge them to think differently about what is necessary today.

Inez Stepman:

I think you’re so right to draw a parallel between these, these two issues because when we’re talking about the inability to sit down face-to-face with somebody and have even a heated debate or discussion, I do think a lot of that self-censorship, it starts in K12, it continues up into higher ed. And part of the reason that we’re even talking about Title IX the way that we are, especially with regard to the harassment issue is because, over the last couple decades, we’ve inculcated an ideology that tells people that they can’t speak freely, and tells people that they are right to be fragile about hearing other dissenting views from their own.

And you’ve been, obviously, an advocate for educational choice for just decades and decades, a champion for school choice. I mean, 2021 legislative sessions were possibly the real year of school choice. We’ve been hearing that since 2011, but this time it really seemed to come through. And before we wrap up here, I know that a lot of your book is about those solutions that do provide freedom and flexibility. Parents seem more engaged now than they have been since I started doing this ed work 10 years ago. You have a longer timeline than I do. Have you ever seen this amount of energy behind school choice? And if not, why do you think that that’s happening now?

Betsy DeVos:

Well, no, there’s never been this kind of momentum or energy. And it’s happening for a variety of reasons, but all coming back to the pandemic, and how kids were locked out of school for months on end. Kids who could least afford to be, who are the most vulnerable and needed to be in-person in class the most, whether it was mask mandates or whether it was parents seeing on the distance learning end, what their kids were or weren’t learning. And being happy or unhappy about either of those situations, either they weren’t learning anything or they weren’t actually making progress, or they were observing curriculum that they were appalled by.

And so it really is a confluence of all of these things that have awakened many families that I think thought their kids were doing just fine. And now you see at the school board meetings, and in all other settings across the country, families have really started to find their voice on behalf of their own children to say, “We need and want something different.”

And so I think that momentum is going to continue to build because the system is continuing to double down on protecting itself. And so I think we’re going to see more legislation at the state level, a lot more legislation to allow freedom, to allow… I use the metaphor of a backpack, kids use their backpacks to take the stuff they need for school each day, let’s metaphorically attach the money that’s already spent on that child to that kid’s backpack to go to the school or the education setting that is going to work best for him or her. And parents will see this through ultimately.

Inez Stepman:

Well, on that hopeful note, and we get so few of them these days, Betsy DeVos, former Secretary of Education, thank you so much for joining us-

Betsy DeVos:

Of course.

Inez Stepman:

… here on At The Bar. It’s been a real pleasure to have you, and I just want to put out the name of your book once more for our listeners, her book is, Hostages No More: The Fight for Education, Freedom, and the Future of the American Child. And I believe it’s released in June 21st. Is that right?

Betsy DeVos:

The 21st, but you can pre-order anywhere you like to buy your books.

Jennifer Braceras:

Great. I look forward to reading it. Thank you so much for joining us.

Betsy DeVos:

Thanks. Thanks, Jennifer. Thanks, Inez. Appreciate it.

Inez Stepman:

Thanks for coming.

Jennifer Braceras:

Thanks to all of our viewers for tuning in for another episode of At The Bar. We’ll see you next time.