Trump Withdraws Federal Guidance on Transgender Bathroom Policies

Last night, President Trump’s administration withdrew federal guidance previously issued by the Office for Civil Rights in a Dear Colleague Letter. The May 2016 guidance under former President Obama allowed students to use school bathrooms that match their gender identity and extended Title IX’s reach to protect students on the basis of sexual identity.

Yesterday’s Dear Colleague Letter was issued jointly by the Education and Justice Departments and states that the issue should not have been handled by the federal government exclusively. It criticized the 2016 guidance for not providing an extensive legal analysis linking its position with Title IX and referenced the ongoing litigation surrounding the guidance. I previously wrote about the inability of the federal government to enforce its guidance since a nationwide
injunction was issued by a federal judge in August.

The Dear Collegue Letter states, in part

“In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved.”

And goes on to state:

“Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”

It is reported that Betsy DeVos, Education Secretary, requested the addition of this portion to the DCL.

The interpretation of Title IX may ultimately be decided by the Supreme Court in the case of a 17-year old transgender student, Gavin Grimm. Grimm’s lawsuit challenged the bathroom policy of a Virginia school district. A federal appeals court sided with Grimm in April, deferring to the 2016 guidance.

ACLU Senior Staff Attorney Joshua Block told CNN that the Supreme Court will not take into account any administrative guidance in rendering its decision. Regardless of whether the Supreme Court will take prior or current guidance into account, what is clear is that the Trump administration is quickly laying out its legal position on transgender policy noting in press conferences that these issues should be left to the states.

Arguments in the Grimm case are scheduled for March 28th.

A reminder to those administrators at colleges, universities and school districts that this new DCL is guidance alone but there is no doubt that the new guidance adds to the confusion. This release also serves as a window into DeVos as Education Secretary as CNN reports that publicly she supported the guidance, but that this was something “she did not want to do.”

ICS provides a full range of legal and consulting services for institutions of higher education and school districts, including assistance with claims of sex- and gender-based discrimination and harassment. Contact us for more information on ways that we can assist your campus or school.

DeVos Speech and the Changing Title IX Landscape: “The current system has failed”

Today Secretary of Education Betsy DeVos announced the launch of a notice and comment process to replace the current campus approach in responding to alleged incidents of sexual misconduct under Title IX. As I always say, the one thing constant is change.

DeVos’ speech was riddled with examples of where the current campus system formulated under the Obama administration has failed both victims and accused students. What rang clear was her sentiment that the due process rights of accused students have not been adequately considered or addressed in campus proceedings stating:

“One rape is one too many…one person denied due process is one too many.”

“Lives have been lost. Lives of victims and lives of the accused.”

“Using a system that has a bias towards finding a student responsible is engaging in discrimination.”

“Rights of one cannot be paramount to the rights of another.”

“Due process protects everyone or it protects no one.”

DeVos’ speech highlighted the atrocities of sexual misconduct and stated that this new approach is not about letting institutions off the hook; however, she encouraged institutions to look at white papers and suggested approaches put forward by organizations such as the American Bar Association describing them as “useful” going forward. The items noted in her speech:

Was the DeVos Title IX Guidance Necessary?

I have spent the last two weeks mulling over some fundamental questions surrounding the Title IX debate. Is the system broken? Did the Obama-era OCR need to release the 2011 DCL and take the subsequent enforcement actions? If flaws did exist, did DeVos need to rescind the 2011 guidance? And did the new 2017 guidance really change anything?

I vividly remember the day OCR released its 2011 Dear Colleague Letter. As in-house counsel, I attended webinars and call in sessions to learn all I could about what the guidance meant for campuses going forward. The next 6 years were challenging and full of growing pains as campuses across the country adjusted. A good deal of the discomfort was a result of OCR’s dogged enforcement of the guidance as more and more institutions found themselves at the center of federal investigations.

Initially, I did not particularly care for the way the guidance appeared into existence. College administrators did not care for some of the new obligations imposed on institutions, seemingly overnight. Not because they did not care about sexual assault but because it meant more work for those with an already full plate with no additional resources. There was also confusion because certain portions of the guidance were murky. Sitting side by side with administrators in real time, I too struggled with the best way to advise my client in complying with the guidance, rectify the lack of man power and resources to meet those requirements and support the parties in process. As a lawyer it seemed simple but in practice it was not simple at all.

Despite my initial reservations, looking back I can say that the guidance was necessary. The guidance alone though would not have been the wake-up call needed for institutions to implement the necessary changes in cases of sexual misconduct. More importantly, it would not have been enough for institutional leadership to take notice and provide additional resources to middle management to implement the changes (something that is still a struggle for many institutions). The guidance, without the enforcement, would never have effectuated change. Ask yourself this. From the 2001 revised guidance that is now the “go to” guidance of today’s OCR (which reiterates the implementing regulations requirement that campuses must have a designated Title IX Coordinator) through 2011, how many campuses had designated Title IX Coordinators? And if they did have a designated Title IX Coordinator, did the position look like it does today?

Are the systems that have evolved out of the 2011 prior guidance a failure? Certainly not. Reports of sexual misconduct are up. Awareness of the issue is up. Media coverage of this epidemic is up. Support for victims of sexual assault has increased. We are all more educated on the devastating effects of sexual assault. All positives. Nonetheless it is still the most unreported crime which tells us something about leaving this issue to the criminal justice system.

Did those systems fail complainants or accused students at times? Most likely. As institutions have implemented the guidance and determined best practices for their campuses mistakes have been made. I agree that is very unfortunate; however that does not mean the system as a whole has failed or that colleges are now running “kangaroo courts” as described by DeVos. Rather, administrators are spending time educating themselves on their professional and institutional obligations and working tirelessly to ensure that these matters are handled fairly (to both sides) and professionally to arrive at the right result and to maintain a campus culture free of sexual assault.

Suffice it to say I describe the campus systems that have emerged to handle matters implicating sexual misconduct as a work in progress. Thus, rescinding the guidance was not necessary but a change in OCR’s posture is due. Would colleges enjoy a working relationship with OCR versus a punitive one? Of course. Would colleges benefit from more clarity on some of the inconsistencies with the prior guidance and VAWA? Sure. Is there room for some additional clarifying guidance? You bet.

So here we are with a new guidance in place and proposed regulations on the horizon. If the new guidance is any indication of things to come my prediction is that it will not dramatically change the important work campuses are already doing in this area. All of the statements and “changes” by the Trump administration are keeping this issue in the national spotlight and I will admit there are positives in that. It is also creating chaos in an already complex area and turning a very serious issue in to a political battle. That is very unfortunate. Regardless, institutions of higher education have an opportunity to have a voice in how these matters are handled at the campus level and they must capitalize on that opportunity. This will hopefully close the gap that has existed in this area between new federal mandates/enforcement and the realities of implementation on the campus level and continue to promote a safe living and learning environment for college students.

Courtney Bullard is a former System attorney and the head of Institutional Compliance Solutions, a division of a law firm. ICS provides a full range of legal and consulting services for institutions of higher education, including assistance with claims of sex- and gender-based discrimination and harassment. We partner with institutions to defend Office of Civil Rights and other federal investigations and litigation. Our services expand to representation in any legal matter faced by institutions. Contact us for more information on ICS’ services.

A New Day? Changes to OCR’s Case Processing Manual

On March 5, 2018, the Office for Civil Rights issued a revised Case Processing Manual. This manual contains the procedures that the Office for Civil Rights should follow to “promptly and investigate and resolve complaints, compliance reviews and directed investigations to ensure compliance with the civil rights laws and regulations enforced by OCR.” The changes contained in this new manual indicate the continued efforts of OCR, stated through its new leadership, to collaboratively work with institutions, rather than taking the punitive tone it has taken since the infamous and now rescinded 2011 Dear Colleague Letter.

In the context of Title IX, these changes will be welcome to institutions across the country. Those institutions who have faced an OCR investigation since 2011 know that the investigations were extremely burdensome. Investigations stemming from a complaint of non-compliance in one campus case, quickly spread to a full blown compliance review of the entire campus going back anywhere between three and five years. Under the new manual, investigations are to be tailored to the allegations contained in a complaint and the days of broad, burdensome document requests seem to be over. Many other favorable changes are contained within the manual such as additional basis for mandatory dismissals, the ability to resolve complaints up to a finding through a facilitated resolution between the parties (“FRBP”) and the removal of an appeal right of a complainant if OCR makes a finding of insufficient evidence.

OCR is demonstrating an increased willingness to work with institutions while maintaining its efforts in achieving civil rights goals. As this manual goes in to affect across regional offices, it is crucial that institutions either currently under investigation or who find themselves under investigation work closely with their counsel to ensure that they are availing themselves of the benefits of some of the positive changes set forth in the revised manual.

Courtney Bullard is a former System attorney and the head of Institutional Compliance Solutions. ICS provides a full range of legal and consulting services for institutions of higher education, including assistance with claims of sex- and gender-based discrimination and harassment. We partner with institutions to defend Office of Civil Rights and other federal investigations and litigation. Our services expand to representation in any legal matter faced by institutions. Contact us for more information on ICS’ services.

Common Threads: Kavanaugh Hearing and Campus Title IX Proceedings

As an attorney who specializes in Title IX compliance, and works in the area of sexual misconduct both in the workplace and education environments, I was glued to the TV watching the live testimony from both Judge Brett Kavanaugh and Dr. Christine Blasey Ford and the subsequent press coverage. I am going to refrain from providing the background behind what brought America to this moment in detail because it has been so widely covered by the media. What I am struck by are the similarities, the common threads, between the testimony in the senate hearing and campus proceedings involving allegations of sexual misconduct.

Requests for Confidentiality. The concern over honoring requests for confidentiality by accusers is one that has been addressed by the OCR regulations and widely debated. Dr. Blasey Ford requested confidentiality when she brought forth the allegations to her state senator. This is something that colleges, specifically Title IX Coordinators, regularly face. The balance between honoring the request of the accuser, and doing what is in the best interest of the campus at large, can be very difficult.

Holding Information. Senator Feinstein attempted to honor Dr. Blasey Ford’s request for confidentiality and is under fire as a result of that decision. Campuses face the issue of which employees may hold reports confidential, whether a confidentiality request should be honored in light of campus safety concerns, and so on. At the core for an institution is when it is “on notice” of an alleged incident so that it can appropriately respond – just as is happening with the allegations against Kavanaugh.

Delays in Reporting. This is a question I ask complainants as an investigator on cases where there is a huge delay in reporting because it simply must be asked. Ultimately, many perceive a delay as an indicator that what has been reported is not true. That is just not the case. All of the reasons that there are delays in reporting were well articulated by Dr. Blasey Ford in her testimony and all of those reasons are being painfully played out through attacks on Dr. Blasey Ford and her family. On the flip side, many feel that she was reckless in coming forward and “ruining Judge Kavanaugh’s life” over events that may have happened over 30 years ago.

Polar Opposite Accounts. So often the accounts of the accuser and the accounts of the accused are drastically different, just as we have here. An accuser tells his or her truth that they were sexually assaulted. The accused states s/he (1) was not there that evening, (2) was there but did not engage in any type of sexual assault, (3) the sexual act was consensual, and/or (4) s/he would never engage in that type of behavior and here are a slew of character witnesses to support that notion. Campus administrators regularly are faced with radically different accounts of the incident that must be reconciled. When there is no evidence, and no eye witnesses, they must make a credibility determination. It is evident from the debates going on across America that the question of which party is more credible is not an easy one.

Real Emotion. Both Judge Kavanaugh and Dr. Blasey Ford displayed very real, raw, emotion. These matters are highly emotional. For the parties involved, of course, but also for the investigators and decision makers. Consider the reaction of Americans, which is deeply divided, to the testimony from both parties. Also consider Sen. Flake’s wavering on whether to proceed with a nomination or delay it to allow for an FBI investigation.

Perception of “sides.” There were a lot of questions by Republicans who support Judge Kavanaugh regarding Sen. Feinstein providing assistance to Dr. Blasey Ford with obtaining counsel. So often any action taken by an institution to “assist” one side or the other, typically through various interim measures, is seen by the other party as taking sides. Typically those beliefs mushroom in to a conspiracy theory type belief against the institution.

Fairness Questioned. What is a truly “fair and balanced process?” How do you balance respecting the accuser with the rights of the accused for a fair hearing. All hard questions that do not have clear cut answers.

Lawyering Up. The number of lawyers involved outnumbers the parties involved. Enough said there.

Implications of the Outcome. During the Kavanaugh hearing you heard folks on both sides of the aisle very concerned about the implications of the outcome of this proceeding. Will it have a chilling affect on victims who will not want to come forward if he is appointed? Will it cause false allegations to come forward with wild abandon that will ruin someone’s life/career? Is this proceeding really fair to either party? In the college setting these same concerns are debated with that debate played being played out in the courts and coming to a head with new proposed regulations on the horizon from OCR.

Doing Their Best. This stuff is hard, heart breaking, and difficult. Everyone making the ultimate decision as to whether an accused is responsible or not is doing their best to arrive at the right decision. As an external investigator and/or an attorney advising on cases, I can say without question that I have had sleepless nights over cases. I have no doubt the senators involved have done the same (although I fully recognize how politicized this has become). I can speak from experience, working hand in hand with administrators facing these issues, that they take them seriously, they are doing their absolute best be fair to all members of their campus in these processes, and that they are diligently working to come to the right conclusion.

No One Wins. It is often said that these are loose loose situations and that is true. No one “wins.” No matter the outcome, one side or the other is upset and disagrees with the result. Both parties are forever impacted.

To those on the ground who conduct campus investigations each day, the Kavanaugh hearing is a public, albeit politicized, example of the difficult work that you do. This stuff is not easy. It is not black and white. There is not always one way to do it to get it right. It is unfortunate on so many levels that the Supreme Court nomination has come to this and that allegations of sexual misconduct have been politicized in this way, but it gives the pubic a glimpse in to the day-to-day challenges campuses face in responding to allegations of sexual misconduct. It will be interesting to see how the new proposed regulations from OCR shake out – and whether they provide any more clarity for college campuses in their compliance efforts.

Courtney Bullard is a former System attorney and the head of Institutional Compliance Solutions. ICS provides a full range of legal and consulting services for institutions of higher education, including assistance with claims of sex- and gender-based discrimination and harassment. We partner with institutions to defend Office of Civil Rights and other federal investigations and litigation. Our services expand to representation in any legal matter faced by institutions. Contact us for more information on ICS’ services.