By Terry W. Hartle
This post originally ran on the New England Journal of Higher Education website.
When U.S. Secretary of Education Betsy DeVos announced Sept. 7 that her department would revisit how Title IX rules are enforced with respect to campus sexual assault, she said the first step would be a “transparent notice and comment process” to replace the 2011 “guidance” (and follow up 2014 guidance) that has been criticized for its one-size-fits-all presumption and lack of flexibility for campuses.
The U.S. Department of Education announced more details last week about how that process will work.
On Friday, Sept. 22, the department issued a “Dear Colleague” letter and Q&A document on Title IX and sexual assault. The Dear Colleague letter rescinds the 2011 and 2014 guidance and states that the department will develop a policy that “responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits” through a rulemaking process. The schedule for this process is unclear.
In the interim, the department will rely on the “Q&A on Campus Sexual Misconduct,” developed using the 2001 “Revised Sexual Harassment Guide.” In some areas—such as letting colleges choose whether to use the “preponderance of evidence” or the “clear and convincing” evidentiary standard—the Trump administration is clearly making a change from current practice. In other areas, the new Q&A requires the same thing as the existing guidance. For example, the 2011 guidance and the Trump administration’s Q&A both require schools to have a title IX coordinator.
It should go without saying that schools should be very careful about altering current practices and only do so after close examination of the Q&A. And keep in mind that any changes may be temporary. The regulatory process the department intends to pursue is very likely to result in further changes in federal requirements.
But as the process for updating the Title IX campus sexual assault enforcement rules gets underway, let us not forget how notable it is that this is happening in the first place.
At one level, a regulatory process is not a big deal. The Education Department does it all the time on many issues.
Just since 2000, hundreds of higher education rules have been modified, created or eliminated.
However, the department rarely uses the regulatory process for Title IX. Indeed, OCR has gone through the formal rulemaking process just three times since initial Title IX regulations went into effect in 1975. Only two of these affected higher education. The first time involved revoking the prohibition on discrimination in the application of the codes of personal appearance in 1982. In 2000, OCR altered Title IX regulations to implement the Civil Rights Restoration Act of 1987, the so-called “Grove City” law that overturned a 1984 U.S. Supreme Court ruling that held that Title IX applied only to student financial aid, not other parts of the college that received federal dollars. The Civil Rights Restoration Act ensured that Title IV student financial aid triggered Title IX exposure for the entire school.
OCR has been more inclined to simply issue “guidance” that interprets Title IX regulations pertaining to campus sexual assault rather than pursue a formal rulemaking process. For example, the 2011 Dear Colleague Letter was developed “in house” without any suggestions from affected parties.
It is significant that the Trump administration is attaching a great deal of importance to getting the serious and complicated issue of campus sexual assault enforcement right. Promulgating regulations affecting Title IX is infrequent, hard and important. It is always a good idea to give all the parties involved an opportunity to comment and give their views on public policy.
Institutions, in responding to claims of sexual assault, have a responsibility to support the victim and to be fair to both parties. Figuring out exactly how to do that, when there may be different stories about what happened, no witnesses, and substance abuse may have been involved, can be extraordinarily difficult.
What we have had is a set of requirements, some of which are legally mandatory, others of which may or may not be mandatory. For colleges and universities the result has been uncertainty and complexity with no way to be sure in advance if they are doing the right thing. In this environment, it’s hardly surprising that schools have run afoul of OCR.
In the short run, any tweaking of campus policies or proceedings is likely to be at the margins. It is unlikely that colleges and universities will immediately change policies that they spent the last six years writing—and sometimes rewriting. And no institution will back off the commitment to prevent sexual assaults from occurring in the first place and handling cases that do occur with compassion for the survivor and fairness to both parties.
But replacing legally binding but unclear guidance with legally binding and clear regulations, and soliciting input from all sides in doing so, is a very good idea that will result in clearer regulations and, we hope, greater protections for all students.