The Trump administration should withdraw the ‘Dear Colleague’ letter.
The winds have shifted at the Department of Education’s Office of Civil Rights (OCR). Once captured by a small cadre of left-wing legal activists, the OCR is now under different leadership — and it is moving in the right direction.
That’s the takeaway from a recent speech given by Candace Jackson, acting head of the OCR, and Thomas Wheeler, acting head of the Justice Department’s civil-rights division. Speaking before the National Association of College and University Attorneys, the two officials seemed to consciously set out a new enforcement agenda. After they had finished speaking, Inside Higher Ed reports, Jackson and Wheeler were “treated to a warm, even grateful, ovation.”
The university lawyers have a lot for which to be grateful. The Trump administration officials signaled an end to the lawless and micromanaged approach of their predecessors. The OCR is now “committed to discontinuing the legally dubious practice of issuing subregulatory guidance that is then treated through enforcement as binding mandates,” Jackson said. Therefore, she promised, her office would cease unilaterally imposing new regulatory requirements.
Jackson would go even further in distancing her office from its Obama-era practices. “OCR 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,” she said.
According to Inside Higher Ed,
She pointedly accused the Obama administration’s civil rights office of taking a “gotcha” approach to enforcing civil rights laws, of approaching “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.”
That expansive approach, combined with OCR leaders’ disinclination to let investigators in the agency’s regional offices exercise their judgment, Jackson and Wheeler argued, created a huge backlog of cases, keeping colleges — and the students who brought the complaints as well as those accused — in limbo for “months if not years.”
Now, as Jackson said and a leaked memo confirms, the OCR will investigate on a case-by-case basis, seeking to avoid turning each individual investigation into a lengthy search for “systemic” problems within an institution. Indeed, the OCR reports that, on average, it takes 703 days to resolve a sexual-assault case. “Justice delayed is justice denied,” Jackson repeated.
This constitutes a bold new approach for the OCR, and a 180-degree reversal from the Obama administration’s policies. As such, it is a welcome first step.
Improbably convinced of the existence of a college rape epidemic, the Obama-era OCR seemed to take the side of the loudest and most hysterical campus activists. Accordingly, the OCR successfully pressured American universities into weakening due-process protections for students accused of sexual assault. Universities were told they must use the lowest possible standard of proof, preponderance of the evidence, to adjudicate these serious cases.
Or rather, as the old OCR would have you believe, these were all suggestions, mere regulatory “guidance.” This is how the OCR put it at the end of its infamous 2011 “Dear Colleague” letter:
When conducting Title IX enforcement activities, OCR seeks to obtain voluntary compliance from recipients. When a recipient does not come into compliance voluntarily, OCR may initiate proceedings to withdraw Federal funding by the Department [of Education] or refer to the case to the Department of Justice for litigation.
In other words: “Here is a totally voluntary suggestion from the Department of Education. But if you don’t follow it, the government will either sue you or cut all your funding, devastating your university.” This was how Obama’s OCR operated.
Note that Congress approved none of this. Instead of going through the difficult process of passing a law, Obama’s OCR decided to simply reinterpret Title IX, a 40-year-old anti-discrimination statute.
The key part of the law, passed in 1972, states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Next, in Davis v. Monroe County Board of Education (1999), the Supreme Court acknowledged that if schools “are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive . . . it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Therefore, schools could be held liable under Title IX for sexual assault in extreme circumstances.
But from that limited finding, Obama’s OCR took a logical leap of faith. It decided that it had been granted the authority to force schools to adopt a specific, lower standard of proof, force them to allow “double jeopardy” legal proceedings, and strongly discourage cross-examination of accusers in sexual-assault cases.
Jackson should go further and withdraw the ‘Dear Colleague’ letter and its associated regulations.
None of this was just, of course. Sexual assault is a serious accusation; in fact, it is so serious that to find someone guilty based on a “preponderance” standard — 50.1 percent likelihood of guilt or higher — is plain irresponsible. When such a measly standard of proof is combined with a denial of the bedrock right to confront one’s accuser, these OCR-mandated campus sexual-assault trials began to seem dangerous. Consequently, the old OCR’s regulations, highlighted and condemned by groups such as FIRE, incited a backlash even from the left-leaning American Association of University Professors.
Jackson made clear that this type of binding regulatory guidance would be discontinued. For that, she should be applauded. However, she should go further and withdraw the “Dear Colleague” letter and its associated regulations. If it is, in Jackson’s words, “legally dubious,” why let it stand?
Jackson was “non-committal” on this issue, according to Inside Higher Ed’s Doug Lederman, “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.” This sounds promising, but it is too soon to tell.
What we do know, however, is that “what should have been done the first time around” is not what happened. A preponderance-of-the-evidence standard for sexual-assault cases is too low, especially when the “clear and convincing” standard is available as an alternative. Jackson said, “It is unavoidable that OCR will take a position” on whether one standard of proof should be mandated, but the nature of that position is “actively under consideration.” Let us hope the OCR chooses to stay within the confines of the law.
But in the end, all the decisions made at Trump’s OCR can be undone. As we have seen, a new administration can install new leadership and completely reverse everything that its predecessor has done.
If the Republican party and the Trump administration truly want to restore sanity, order, and legitimacy to campus sexual-assault proceedings, they will have to pass and sign legislation defining the powers of the OCR and the meaning of Title IX. Otherwise, a 2020 or 2024 loss to the Democrats will mean a whole lot of lost progress and a new mandate to uproot the bedrock rights of the accused.
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