Legal

College Lawyers Welcome New Clarity of Education Department’s Office for Civil Rights

June 28, 2017

Mike Wintroath, AP Images
The tone at the Education Department's Office for Civil Rights has long been that investigators "should keep looking until they find something," Candice Jackson, acting assistant secretary of that office, told campus lawyers on Tuesday. She vowed to work more collaboratively with college’s legal teams.

Two officials from the Trump administration, both responsible for enforcing federal civil-rights laws, got a warm welcome Tuesday from higher-education lawyers, who praised their willingness to listen to the institutions’ concerns.

Candice E. Jackson, acting assistant secretary for the Education Department’s Office for Civil Rights, and Thomas E. Wheeler, acting assistant attorney general at the U.S. Department of Justice, spoke for nearly 90 minutes to the lawyers, here for the annual meeting of the National Association of College and University Attorneys.

The two officials offered to work collaboratively with colleges and to no longer treat informal guidance, such as the department’s 2011 "Dear Colleague" letter on Title IX, as a formal regulation, requiring the colleges to comply with specific measures.

"It’s fantastic" to hear department officials offer such a transparent approach, said Leanne M. Shank, general counsel at Washington and Lee University, who called the officials’ presentation a "home run."

College lawyers, in particular, have complained since 2011 that the department’s guidance on dealing with sexual assault was onerous and ignored institutional concerns about the costs and difficulties of creating a quasi-judicial system. One of the latest problems, lawyers say, is a wave of lawsuits from students accused of sexual assault who are challenging the institutions’ responses.

Ms. Jackson also said that guidance issued six years ago in that Dear Colleague letter would be among the Obama-era policies considered for reversal by a task force exploring changes to the Education Department’s regulations.

Members of the association have already attended several "listening sessions" with Ms. Jackson, said Jerry D. Blakemore, general counsel at the University of North Carolina at Greensboro. Those meetings have been important for the colleges to share their concerns about the way the department operated during the Obama administration.

"They have been open and sincere about wanting to learn," Mr. Blakemore said. "We don’t have to be adversaries."

Early Controversy

Ms. Jackson’s actions leading the department’s civil-rights efforts have already attracted controversy.

Earlier this month, an internal memo from Ms. Jackson said that an investigation into a possible civil-rights violation should not automatically trigger an exploration of a broader pattern of civil-rights abuses at a school or college.

Ms. Jackson told the college lawyers that the changes are meant to speed the process and bring more cases to a close in a timely fashion. More than 300 colleges are under investigation for possible violations of Title IX, with many of those proceedings lasting years.

In the past, the tone at the Office for Civil Rights was that investigators "should keep looking until they find something," Ms. Jackson said during her speech.

The Trump administration’s new approach will weaken the process because the Office for Civil Rights is supposed to help students look beyond the particulars of one incident, said Alexandra Brodsky, a fellow with the National Women’s Law Center.

The Education Department has also raised concerns of advocates for LGBTQ students by rescinding Obama-era guidance on protecting transgender students that allowed them to use the bathroom or locker room that corresponds to their gender identity, not their biological sex.

Transgender students are still protected under existing federal laws and regulations, Ms. Jackson said. But rescinding the latest guidance will allow states and institutions to come up with solutions that better fit their needs rather than mandating a particular approach.

Debora L. Osgood worked for 25 years as a lawyer at the Education Department’s civil-rights office and is now a partner in the Chicago law office of Hogan Marren Babbo and Rose. She said at a panel discussion earlier in the day that the new guidance will give individual field offices enormous authority but could lead to big inconsistencies across the country.

Welcome Changes

Many lawyers working on or with campuses have nonetheless embraced the announced changes, in particular the less-intrusive investigations into sexual assaults. They argue that colleges are not going to move backward on their commitment to preventing and punishing sexual misconduct.

Scott A. Roberts, a lawyer with Hirsch Roberts Weinstein, said the current length of the process often does no good for the accuser, the accused, or the institution. A young woman who is assaulted as a freshman may graduate without any resolution to her case, and the college remains in limbo during that time, as it seeks to change its policies and practices.

Despite the many other controversies that have erupted from the Trump White House, many of the college lawyers are willing to take Ms. Jackson at her word on forming a better relationship.

Colleges and the Office for Civil Rights have long worked together to advance civil rights, said Pamela J. Bernard, vice president and general counsel at Duke University. "Only under the previous administration has that partnership fallen apart," she said.

Ms. Brodsky warned that if the Education Department and colleges begin to slip in their enforcement of Title IX’s provisions, groups like hers would continue to hold them accountable.

"I wouldn’t be surprised if some university administrators are breathing a sigh of relief," she said. "But they shouldn’t be."

Clarification (6/28/2017, 4:50 p.m.): This article has been updated to clarify when and where Debra L. Osgood spoke about new guidance from the Education Department. She spoke at a panel discussion that took place before the event with Trump administration officials.

Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.