Zach Winn, Campus Safety Magazine | High-ranking officials from the Department of Education and the Department of Justice announced plans to “reorient” the federal government’s policies and practices for civil rights and Title IX enforcement at colleges.
“[The Office for Civil Rights] has fallen into a pattern and practice of overreaching, of setting out to punish and embarrass institutions rather than appreciate their good faith and genuine desire to correct legitimate civil rights problems,” Acting Assistant Education Secretary for Civil Rights Candice Jackson said.
Jackson and Acting Assistant Attorney General Thomas Wheeler, who oversees the DOJ’s civil rights division, made the presentation at the National Association of College and University Attorneys June 27 in one of their first public addresses to a college group.
The officials roundly criticized previous actions by Obama administration officials, specifically in the Department of Education and it’s Office for Civil Rights, making clear that changes are coming after a “scale back” of OCR Title IX investigations was announced last month.
Wheeler said a large regulatory review will subject many rules to a cost-benefit analysis weighing the burden of compliance for schools with the benefits they provide students, according to Inside Higher Ed.
Three areas that seem primed for adjustments are listed below.
1. The Dept. of Ed.’s List of Schools Under Investigation
Jackson sharply criticized the Department of Education’s practice of publicly listing the institutions that are being investigated by the OCR— something the Obama administration had begun in 2014. Jackson said the practice is “high up on that list of things that will soon be addressed as the agency reconsiders various regulatory efforts as part of President Trump’s administration-wide regulatory review.”
Jackson referred to the list as the “list of shame” and said “our job isn’t to threaten, punish or facilitate drawing media or public attention” to colleges and universities.
2. College Title IX Disciplinary Proceedings
Jackson also addressed one of the most controversial aspects of the Department of Education’s guidance: the “preponderance of evidence” standard of proof that schools are required to use during Title IX investigations and disciplinary proceedings.
Jackson said the practice of requiring schools to use that standard of proof is “actively under consideration”, although she did not indicate how it may change.
The standard, which means students must be found responsible for misconduct if evidence suggests it is more likely than not that they committed misconduct, has led to numerous lawsuits and a recent condemnation from the American College of Trial Lawyers.
3. Dept. of Ed. Methods for Resolving Title IX Cases
Jackson insinuated that the Office for Civil Rights would pursue alternative options for closing civil rights cases, including the broadening of “early complaint resolution” options in sexual violence and racial discrimination cases.
Other OCR, Title IX Announcements
In a possible response to civil rights advocates’ criticism (which has sparked an investigation by the U.S. Commission on Civil Rights), Wheeler and Jackson reaffirmed the Trump administration’s commitment to to the rights of transgender students, with both insisting that such students are protected by existing federal laws.
In February, the Trump administration withdrew federal guidance from a Dear Colleague Letter that allowed students to use school bathrooms that match their gender identity. In withdrawing the guidance, the OCR asserted that states and local school districts should create their own policies. Jackson said the withdrawal “does not leave those students without [civil rights] protection.”
Wheeler also addressed an update on a federal accessibility rule for students with disabilities. The update to the Rehabilitation Act of 1973 directs colleges and universities to design publicly facing websites with accessibility in mind.
“We get it, there’s a tremendous burden,” Wheeler said of the rule. “That’s money that ought to be spent on students.”
Reactions to the Announcements
While the audience of lawyers at the NACUA event applauded Jackson and Wheeler, some sexual violence victim’s advocate groups and Obama-era officials said the proposed changes would leave students vulnerable and lessen campus safety.
Catherine Lhamon, who headed the Office for Civil Rights under President Obama and who Wheeler criticized by name in the presentation, condemned the announcements as well as previous changes that will stop the OCR from automatically looking for systemic issues during Title IX investigations.
“OCR’s charge from Congress is that it must act whenever it has information that civil rights may be violated, and if one student has been harmed, it’s incumbent on OCR to look to see if there’s another student who is similarly situated,” Lhamon told Inside Higher Ed.
Former co-directors of the anti-sexual violence campaign Know Your IX Dana Bolger and Alexandra Brodsky singled out Jackson’s criticism of the practice of publicly listing schools under investigation.
“Jackson doesn’t seem to understand the purpose of her office or of government transparency,” Bolger and Brodsky wrote in a scathing Washington Post editorial. “…Thanks to the list, students know what to look out for on campus and, if they are mistreated, that they are not alone. Transparency also improves government enforcement by inviting students to contact the office about their experiences on investigated campuses.”
Responding to past criticism and perhaps anticipating the backlash to the new announcements, Jackson said at the NACUA conference, “For those in the press and my friends with other political perspectives who have been expressing fear that… OCR is scaling back or retreating from civil rights, that’s just not the case.”
(Report: Title IX Enforcement Highlights, U.S. Department of Education, Office for Civil Rights, Title IX Enforcement Highlights, Washington, D.C., 2012)