Author: legdx

Post Election Title IX – The Toothpaste is out of the Tube

As 2016 comes to an end, and institutions look forward to 2017, every institution should also be evaluating its compliance efforts with Title IX and related laws and regulations. All of you in the trenches on campuses across the country are left wondering what post-election Title IX is going to look like for institutions of higher education. I am not going to try and read the tea leaves as to what will happen in this area; however, I can narrow down the realm of possibilities.
 

•OCR continues with the same amount of emphasis and aggression in enforcing its 2011 Dear Colleague Letter and subsequent guidance through investigations. I predict this to be the most unlikely possibility given the GOP platform released at the convention.
 

•OCR guidance remains in place, but efforts shift away from enforcement.
 

•OCR guidance is removed altogether.
 

•There is new guidance issued that completely negates the current guidance in this area.
 

A few things to remember in considering these possibilities. First, much of what is contained in the DCL has been codified in VAWA and therefore it is now law not just guidance. That means that it will be more difficult to undo, so to speak, because it would have to be repealed. In addition, whether or not the guidance is enforced, institutions are still legally obligated to comply with VAWA. Second, if Trump becomes a one term president, a democrat is elected in four years, and enforcement shifts back to what we have experienced since 2011, the look back period for OCR during investigations is typically 3 years. It therefore behooves institutions to continue with the “new normal” that has been created in this area. Third, lack of enforcement by OCR will likely lead to more and more disputes being played out in the court system. That means it is even more important to stay abreast of legal trends in this area.
 

The bottom line is that the toothpaste is out of the tube. All of your efforts in preventing and addressing sexual misconduct, relationship violence and stalking are not all for naught. Institutions have put in the hard work to revamp policies and processes; there is a heightened focus on the safety of students on college campuses as a result of increased media attention; and communities are more educated on the obligations and expectations of institutions in addressing these issues. Whether post-election Title IX includes continued OCR enforcement efforts, or not, will not and should not negate the efforts institutions have made to provide a safe campus for learning, living and working for its students, faculty and staff.
 

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 ways that we can assist your campus.

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.

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:
 

• The ABA White Paper from June 2017
• The American College of Trial Lawyers White Paper on Campus Sexual Assault Investigations
• The Harvard Law Professors’ Open Letter Regarding Campus Free Speech and Sexual Assault
• The Regional Center for Investigation and Adjudication by Gina Maisto Smith and Leslie M. Gomez

 

One thing that is certain is that change is coming to the Title IX landscape. Register today for the ICS First Report webinar on Monday, September 11th at 1:00 EST that will address the implications of today’s speech. ICS also hosted a webinar on managing respondents that can be purchased here.
 

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 ways that we can assist your campus.

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.

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.