Department of Education Rescinds Obama-Era Guidance on Sexual Misconduct

September 22, 2017

Following Education Secretary Betsy DeVos’ Sept. 7 speech critical of the Obama administration’s prescriptive and adversarial guidance on Title IX, we predicted in a client alert that the current administration would formally rescind that guidance. On Sept. 22 that prediction came true.

Candice Jackson, acting assistant secretary for the Office of Civil Rights (OCR), issued today a Dear Colleague Letter (DCL) withdrawing the Obama administration’s controversial DCL of April 4, 2011, and its “Questions and Answers on Title IX and Sexual Violence” (Q&A) dated April 29, 2014. These two documents constituted the highly detailed and mandatory regulatory framework that the U.S. Department of Education (USDOE) insisted all schools follow or risk loss of federal funds, including federally-backed student loans.

Many college and university administrators criticized the 2011 DCL and Q&A as unnecessarily heavy-handed, misguided and overly prescriptive. The criticism was fed by the fact that the DCL and Q&A were constructed entirely by department bureaucrats without going through the regulatory rule-making process that would have afforded interested parties the opportunity to comment on the final rules. As Jackson stated in her Sept. 22 letter, the USDOE guidance was criticized as pressuring schools to the end that “many schools have established procedures for resolving [sexual misconduct] allegations that lack the most basic elements of fairness and due process. …”

In the interim, OCR issued a Q&A on campus sexual misconduct that explains the USDOE’s current expectations of schools, and said that the department will continue to rely on its Revised Sexual Harassment Guidance, which was informed by a public comment process and issued in 2001, as well as the DCL on sexual harassment issued on Jan. 25, 2006. The OCR guidance from 2001 requires prompt and equitable resolution of sexual misconduct claims, but largely leaves it up to each individual institution to devise a grievance procedure to accomplish that result. The DCL also states that “the Department intends to implement such a policy through a rulemaking process that responds to public comment.”

The most immediate impact of the withdrawal of the 2011 DCL is that schools can no longer simply rely upon the detailed requirements of that document to defend claims by suspended students who challenge the fairness of the process they are afforded. Each institution must hereafter defend its sexual misconduct policies and procedures on their merits. But wholesale changes to an institution’s policies and procedures seem premature. Once OCR issues proposed rules, and the comment process is completed, final rules will be issued. This may take one to two years, but the end result hopefully will be a set of regulations that are stable and not subject to the whims of each new administration.

The rule-making process, especially the public comment period, affords an excellent opportunity for schools to influence public policy in this area for decades to come. We encourage institutions to engage in this process through advocacy groups such as the National Association of College and University Attorneys (NACUA) and the National School Boards Association (NSBA) for K-12 schools. In the meantime, McGuireWoods’ Education Law Team is ready to assist clients in navigating the uncertainties that will exist until the new regulatory framework is finalized.