The Biden administration intends, in October, to release new Title IX regulations to deal with campus sexual assault and harassment. In their proposed form, the regulations strip from accused students virtually all of the procedural protections they currently have under Title IX, unless a local court ruling requires their college or university to employ a fairer process.
To understand why we are waiting for yet another set of Title IX regulations, it’s important to understand the history of the last 12 years. In 2011, the Department of Education’s Office for Civil Rights (OCR), in consultation with almost no stakeholders, released an explosive Dear Colleague letter. It outlined guidance on Title IX and sexual harassment, including peer sexual-misconduct allegations. The letter envisioned using only the “preponderance of the evidence” standard when adjudicating Title IX allegations, and allowing student complainants to appeal decisions if the accused student was found not responsible. The guidance also told colleges not to mediate sexual-assault allegations (even if both students wanted mediation), and “strongly” discouraged them from allowing cross-examination. It was a watershed event: the federal government instructing colleges to alter their adjudication procedures when handling sexual-assault allegations, and using the powers provided by Title IX to ensure that the institutions would comply.
In 2017 I filed a request under the Freedom of Information Act seeking various OCR documents regarding the Dear Colleague letter’s origins. And finally — this August — the Education Department complied. I received 838 highly redacted pages. The department, for instance, redacted all contemporaneous talking points for the media blitz that Russlynn Ali, head of OCR at the time, undertook to promote the letter. It also redacted all draft versions of the guidance document and, incredibly, even a PDF of the Dear Colleague letter itself from OCR’s website. Nonetheless, significant chunks of material remained, and they enhance our understanding of this transformative policy change.
The Dear Colleague letter went through at least six drafts in 2011 alone, the result of consultation with other offices in the Education Department and the executive branch. (After receiving feedback from the Office of Management and Budget, a senior OCR staffer drily observed that “there appear to be quite a few edits.”) Once the document was finalized, the Education Department clearly expected colleges to adhere to its standards. “This is a very, very big deal,” OCR’s Ali commented, as selective institutions responded to the nominally voluntary guidance by hurriedly lowering their standard of proof for campus sexual-assault adjudications. To a senior Education Department staffer, the Dear Colleague letter showed how “Russlynn speaks softly and carries a big stick.”
The ideological similarities between the 2011 offering and the pending Title IX regulations suggest that the most important point of continuity was Joe Biden himself. President Biden’s deep, personal commitment to complainant-oriented Title IX procedures is by this point well-established. As vice president, he delivered a speech announcing the Dear Colleague letter at the University of New Hampshire, and he regularly met with groups representing campus complainants thereafter. Between 2016 and 2018, Biden gave a series of interviews and speeches explaining his significant role in developing the Obama administration’s Title IX policy. During the 2020 presidential campaign, he promised to revoke the Title IX regulations issued by then-Education Secretary Betsy DeVos; after his victory, he renominated President Barack Obama’s second OCR head, Catherine E. Lhamon, who had denounced the DeVos regulations for “taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.”
The newly released documents confirm Biden’s centrality to Title IX policy, rather than White House officials (whose sole appearance was to instruct OCR, late in the game, to brief a handful of congressional staffers) and Obama himself (who did not publicly discuss the issue until his second term). Lynn Rosenthal, a longtime Biden adviser, celebrated the Dear Colleague letter for “making history.”
Biden engaged with OCR throughout the Dear Colleague letter’s development and rollout. His office provided suggestions on multiple drafts of the guidance, at one point delaying issuance beyond a scheduled March 2011 release as OCR waited for feedback. OCR’s deputy assistant secretary for policy drafted Biden’s New Hampshire speech, which framed the guidance in explicitly gendered terms. The penultimate draft criticized colleges for often failing “to discipline the offender, leaving him free to do it again”; in the version as delivered, Biden championed a campus culture that would teach “all you guys in the audience, no matter what a girl does, [it’s ...] never okay to touch her without her consent.”
This take echoed a previous claim that OCR initiatives would foster a campus “environment that offers support to victims,” which OCR officials provided to the vice president when responding to his office’s demand for materials on how “key aspects of the guidance ... would play out based on cases we have done.” Finally, as if sensing what would become a flashpoint for controversy, Biden’s staff pushed for the “rationale for why the preponderance of the evidence standard applies” to Title IX adjudications.
In only one way did Biden’s interests and those of OCR diverge: Biden’s office wanted the Dear Colleague letter’s announcement to include “a goal of a 50% reduction in sexual assault in college.” OCR resisted, and no such commitment appeared then, or in subsequent Obama-era guidance. The department withheld the document explaining OCR’s reasoning for its position; perhaps the office was anticipating a negative reaction from groups championing campus complainants, who throughout the Obama years seemed to prioritize adjudication issues. To the extent Biden believed the Dear Colleague letter would reduce the frequency of campus sexual assault, he was wrong, at least judged by surveys showing the rate of the offense largely unchanged since 2011.
While Biden represents continuity between 2011 and today, the media environment surrounding Title IX and campus sexual assault is very different. Back then, the Dear Colleague letter and related OCR actions received overwhelmingly positive media coverage. (In April 2011, OCR’s public-relations officials went through 233 articles without seeing a negative comment.) A typical article, staffers observed, interspersed “quotes by supportive folks” with remarks from Ali that received no pushback. Surveying a piece from Education Week, one OCR aide rejoiced at yet “[a]nother straight news story that puts us in the posture of addressing a problem.”
Some of this positivity doubtless came from the Dear Colleague letter’s unusual politics. No Republican legislators criticized it, even on procedural grounds. And college leaders kept whatever doubts they had to themselves.
Reporters showed scant willingness to skeptically analyze Ali’s actions. The Center for Public Integrity’s Kristen Lombardi recalled the letter as “one of the policy reforms to come out of our reporting” — at the time, she told OCR officials that she wanted to coordinate her “follow up” publications with the release of new resolution letters. In response, officials gave Lombardi the “option” on “the most effective time” to get together with Ali. Her resulting article, timed to two late-2010 resolution agreements, quoted Ali’s prediction that “these settlements will change the culture” and help “cure the epidemic of sexual violence on our college campuses.”
Lombardi’s article on the Dear Colleague letter included quotes from Biden, Ali, and then-Education Secretary Arne Duncan portraying the administration as countering indifferent colleges. (Lombardi led with what she termed Duncan’s “strongly worded” remarks: “The misplaced sense of values and priorities in some of these cases is staggering.”) The only discordant voice came from an undergraduate who wanted OCR to go further and “enforce strict punishment” in individual cases.
Ali gave an interview to the Chicago Tribune’s Todd Lighty to discuss one of her most prominent early initiatives, a resolution letter with the University of Notre Dame — in which she also tipped him off to the specific date of the Dear Colleague letter’s release. Lighty lost his scoop when the vice president’s office publicly announced the release date.
Lighty’s article on the resolution letter did not mention a senior staffer’s concession, contained in the newly released documents, that an investigation of Notre Dame handled through the normal, complaint-centered process would “likely not have found a violation of our statute.” It did, however, prominently note that OCR had not waited “for a formal complaint to be filed, as the office typically has done.” Ali had pressed her staff — five days before the Dear Colleague letter went public — for quick answers to Lighty’s questions about that issue and the procedural specifics of an inquiry that had not begun with a complaint. As with Lombardi’s coverage, the Tribune’s coverage of the Dear Colleague letter flattered OCR, describing a “proactive” OCR prodding “educators, police and others to aggressively respond to reports of sexual assaults on students,” quoting Ali and a sympathetic expert multiple times while avoiding comments from any critic of the guidance.
The chummy relationship between OCR and many journalists continued during Catherine Lhamon’s first stint in office (2013-2017), culminating in OCR’s contacts with Sabrina Rubin Erdely during her investigation of a gang-rape allegation at the University of Virginia. Interviewing Lhamon, Erdely described having witnessed a trustees’ meeting (at UVA, though she didn’t reveal the institution) where officials described compliance reviews as “random” and “routine.” In a quote that appeared in the originally published Rolling Stone article, Lhamon responded, “Nothing annoys me more than a school not taking seriously their review from the federal government about their civil rights obligations.”
Rolling Stone retracted the article after revelations that the rape allegations in question were false. Erdely’s portrayal to Lhamon of the UVA trustees’ meeting also appears to have been inaccurate, but OCR nonetheless told Chuck Ross, of The Daily Caller, “We continue to stand by the statements Catherine made.”
While Erdely’s article initially earned widespread journalistic praise, its retraction proved a turning point. A few articles in mainstream publications, most notably from Emily Yoffe and Cathy Young, had already highlighted the procedural excesses in Obama-era sexual-assault adjudications. Since 2016, transparently one-sided news articles on Title IX and campus sexual assault have become rare. With Senate Republicans unanimously opposed to Lhamon’s restoration in 2021 and a wide array of left-leaning critics having raised due-process concerns about how colleges handle allegations, it’s inconceivable that the final version of the current regulations will receive the type of fawning coverage the 2011 letter did.
An even more important change is the role of the courts. In 2011, few students accused of sexual assault sued their colleges; the most recent relevant federal appeals court decision (eight years before) sided with the university in a cursory fashion. Nowhere in the more than 800 pages of documents did any senior staffer suggest that bowing to OCR’s pressure might expose colleges to lawsuits from accused students. Nor did anything from the vice president’s office express concern with the rights of accused students. That wasn’t unexpected: In his many public remarks on the subject, it doesn’t seem to have ever occurred to Biden that a student could be wrongly accused through a Title IX process.
Shortly after the document was issued, Brett A. Sokolow, founder of a company that sells training and adjudication services to colleges dealing with sexual-violence cases, told Ali that the Dear Colleague letter made him and his partners look “like prophets,” giving their advocacy work an “authority we could never have dreamed it would.” A little over a decade later, having watched colleges zealously implement Obama-era guidance, Sokolow conceded, “The problem of biased outcomes was real. Educational institutions railroaded those accused of sexual violence and harassment (mostly cisgender men) in numbers that should terrify any reasonable person.” That record accounted for more than 500 federal lawsuits filed by accused students since the Dear Colleague letter; the vast majority have alleged some form of gender discrimination under Title IX.
In his many public remarks on the subject, it doesn’t seem to have ever occurred to Biden that a student could be wrongly accused through a Title IX process.
Appellate courts have had a mixed record handling such claims. The First, Fourth, and 11th Circuits have consistently rejected them. But all other circuits have issued opinions unfavorable to colleges. The Third, Seventh, and Ninth Circuits have cited OCR’s actions as among the factors contributing to plausible claims of gender discrimination against accused students. A Seventh Circuit opinion from then-Judge Amy Coney Barrett described the Dear Colleague letter and other OCR pressure as helping to create “a story about why [colleges] might have been motivated to discriminate against males accused of sexual assault.” Concurring in a Second Circuit opinion reviving a Title IX lawsuit, Judge José Cabranes warned of “the regulatory diktats of government” prompting college administrators to employ procedures that “have been compared unfavorably to those of the infamous English Star Chamber.”
Such sentiments appear to have had little if any effect on the administration’s proposed regulations, which revive the Dear Colleague letter’s priorities to such an extent that the Education Department removed (as “redundant”) the current regulations’ reminder that mistreatment “of a complainant or a respondent,” rather than only a complainant, “may constitute discrimination on the basis of sex under Title IX.”
In its desire to restore the policies of the past, however, the Biden administration might have overlooked the lessons of history. In 2011, federal pressure helped to produce — even if unintentionally — the type of one-sided campus outcomes that Judge Cabranes later identified, and which in turn stimulated more skeptical reactions to OCR policies in both the press and among courts. Reflecting the media and legal environments of the era, Ali and her advisers do not seem to have worried about this issue. It’s much harder to understand the current OCR’s indifference. The administration can no longer rely on celebratory journalism: Unlike 2011, OCR staffers will not need to go through 233 articles about the new regulations before finding any quotes from skeptical sources. And as the new regulations prompt institutions to remove existing procedural protections for accused students, a wave of litigation seems all but inevitable — before courts that, on the whole, seem much less deferential to colleges in Title IX matters than a decade ago.
Arne Duncan privately told colleagues in April 2011 that OCR was “changing the country” with the Dear Colleague letter. Campus events of the past dozen years have confirmed Duncan’s observation. If anything, policymakers underestimated the letter’s transformative effect, correctly foreseeing that colleges would follow the department’s guidance but not anticipating that a pattern of overreach in implementation would generate a backlash.
