April 08, 2020
Higher Education Alert
Higher Education Alert
Author(s): Steven M. Richard
OCR report provides data regarding the Trump administration’s approach to Title IX administrative cases.
The Assistant Secretary for Civil Rights has issued the Department of Education’s Office for Civil Rights’ (“OCR”) Annual Report to the Secretary, the President and the Congress, providing data and details regarding OCR’s investigations and resolutions of civil rights cases under its administrative jurisdiction.  The report focuses on the first two fiscal years of the Trump administration, fiscal years 2017–18, emphasizing significant changes in approach compared to the Obama administration. The report is an important and informative document to be read by college and university counsel, Title IX administrators, and equity/diversity officers.
As documented in the report, there have been dynamic and significantly debated changes in OCR’s oversight of Title IX under the Trump administration. On September 22, 2017, OCR withdrew its April 4, 2011, “Dear Colleague Letter on Sexual Violence” and April 29, 2014, “Questions and Answers on Title IX and Sexual Violence,” releasing in their place “Questions and Answers on Campus Sexual Misconduct.” On November 29, 2018, the Department of Education issued a Notice of Proposed Rule Making on Title IX that generated over 124,000 comments; we are awaiting to learn to what extent the comments effectuated any changes in its rule’s final form. While best guesses and rumors swirl predicting the rule’s issuance this month with a mid-August compliance deadline, the report gives no specific advance signals, noting only that the Department “anticipates issuing the rule as final in FY 2020” and will provide “an effective date of implementation.”
Also, the report cites to the February 22, 2017, withdrawal by the Departments of Education and Justice of their joint “Dear Colleague Letter on Transgender Students” issued in May 2016, stating that there must be due regard for the primary role of the states and local school districts in establishing education policy. While the withdrawal document stressed the need to “more completely consider the legal issues involved,” there has not been subsequent federal regulatory promulgation three years later. In the meantime, judicial rulings have addressed, but not uniformly, the protections afforded to transsexual students under Title IX’s prohibition of discrimination “on the basis of sex.” Also, the United States Supreme Court will soon issue a significant decision addressing whether workplace discrimination on the basis of gender identity is covered by Title VII, which could have precedential implications in the Title IX analysis. The evolving judicial and regulatory developments affecting transsexual students will be an important area of Title IX law to understand going forward.
The OCR report provides interesting data evidencing significant changes in the direction of its investigations and resolutions by focusing on the specific details of a complaint, compared to the more systemic reviews undertaken during the Obama administration. OCR touts that its streamlining has created efficiencies and significantly cleared its administrative docket of backlogged Title IX complaints. Here are some key data points offered in the report:
In sum, it will be interesting to compare and analyze the above-reported data against future OCR investigations and resolutions concerning schools’ responses to sexual harassment and assault. As we await the finalized Title IX rule, differing positions have emerged whether the Department should delay its issuance in light of the operational and fiscal impacts of the ongoing COVID-19 pandemic. Education advocacy associations and several state attorney generals have written to Secretary DeVos requesting that the Department hold the rule in abeyance. Supporters of the rule counter that schools have had since November 2018 to plan for implementation. We will continue to monitor and report as Title IX issues evolve not only before OCR, but also judicially, as colleges and universities work their way through these unprecedented times.
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