Under Barack Obama, the U.S. Department of Education drastically ramped up its attention to sex, speech, and social relations on college campuses—a move that mired college students, staff, and faculty in an inscrutable and labyrinthine system of federal investigations but failed to produce noticeable progress in students feeling fairly treated by the process. Now Trump administration officials are promising to refocus the department's Office for Civil Rights (OCR), the agency responsible for regulating anti-discrimination policy in education.
OCR is "committed to discontinuing the legally dubious practice of issuing subregulatory guidance that is then treated through enforcement as binding mandates," Candice Jackson, acting head of the office, told the National Association of College and University Attorneys (NACUA) last week.
During the Obama administration OCR, had a propensity for issuing "Dear Colleague" letters that casually defined things like sexual assault, sexual harassment, and gender in terms that created serious confusion and pressure at schools.
At the NACUA meeting, Jackson said her office would refrain from imposing new regulations on schools without going through the established federal rulemaking process. She also promised not to shirk OCR's mission of making sure schools that receive federal funding do not discriminate against students based on sex, gender, race, religion, etc., nor tolerate an environment that's hostile or unsafe for them because of these things. It's under this umbrella that OCR oversees schools' handling of campus sexual assault.
"We're charged by Congress with a specific mission: to enforce the civil rights guaranteed to our nation's students by certain civil rights laws, and we are fulfilling that charge," Jackson said, according to a report from Inside Higher Ed. "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."
How true this is or remains we shall see, but there's certainly room to scale back on OCR's bureaucratic excesses without sacrificing student rights or safety. In fact, for all of the Obama-era OCR's grand moves, it made little dent in investigating allegations of systemic bad actors in academia, leaving behind a backlog of cases. OCR "processing times have skyrocketed in recent years and the case backlog has just exploded," Department of Education Press Secretary Elizabeth Hill said in a recent statement.
Jackson accused Obama's OCR of taking a "gotcha" approach that treated "every complaint as a fishing expedition through which our field investigators have been told to keep searching until you find a violation rather than go where the evidence takes them."
Previous OCR head Catherine Lhamon insists the "fishing" accusation is false. "OCR's charge from Congress is that it must act whenever it has information that civil rights may be violated," Lhamon tells Inside Higher Ed, "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."
Justified by congressional mandate or not, this approach led to lengthy investigations with slow resolutions—a situation understandably frustrating and frightening both to those facing allegations of misconduct and to victims of sexual assault and harassment. It's also an asinine way to keep students safe from any potential serial predators. What the approach did wonders for is snowballing investigations that picked up ever more (and more minor) potential perps along the way, since simply talking or writing about a Title IX inquiry can get a student or professor accused of violating Title IX policies.
"I've heard from activists on all sides that they no longer recommend going to OCR because the long investigations mean that an OCR complaint is virtually worthless in terms of actually correcting a violation for a complainant," Jackson told the NACUA assembly last week.
Last month, an internal Department of Education memo obtained by ProPublica outlined plans to end OCR's former policy of having certain types of civil rights complaints automatically trigger broader investigations.* "Effective immediately, there is no mandate that any one type of complaint is automatically treated differently than any other type of complaint with respect to the scope of the investigation, the type of amount of data needed to conduct the investigation, or the amount or type of review or oversight needed over the investiation by Headquarters," says the memo, signed by Jackson.
"There is no longer a 'one size fits all' approach to the investigation of any category of complaints," the memo says. This means "that OCR will only apply a 'systemic' or 'class-action' approach where the individual complaint allegations themselves raise systemic or class-wide issues or the investigative team determines a systemic approach is warranted." The shift, the document explains, was designed to "clear backlogs and resolve complaints within a reasonable time-frame."
As far as previous guidance given to schools goes, Jackson was "non-committal" on the agency's plans, according to Inside Higher Ed reporter Doug Lederman:
She stopped short of vowing to withdraw the most contentious recent guidance, the 2011 Dear Colleague letter regarding Title IX and sexual assault, though Jackson suggested that the agency might engage in negotiated rule making to do "what should have been done the first time around": seek input from a variety of parties to decide on a fair system for all parties.
Jackson was also noncommittal about whether the agency would reconsider the standard of proof that colleges must meet in their sexual misconduct disciplinary proceedings.
The 2011 letter suggested a "preponderance of evidence" standard, rather than the tougher "clear and convincing" evidence standard, for campus sexual assault and harassment adjudications. "It is unavoidable that OCR will take a position" on this going forward, said Jackson, but what that position will be is still "actively under consideration."
* Correction: The memo was not issued "earlier this month" but in June.