In light of all of these moving pieces, it would be prudent for colleges and universities in the short term to take a wait-and-see approach and continue their current efforts to comply with the OCR's guidance on Title IX.
On February 22, the U.S. Department of Education issued its first Dear Colleague Letter guidance of the new administration, rescinding the transgender rights guidance that the Obama administration issued last summer. The two-page Dear Colleague Letter withdraws two prior Obama administration Dear Colleague Letters, the most significant of which was the controversial May 13, 2016 letter. That Dear Colleague Letter is perhaps best known to the media and general public for requiring that transgender students be allowed access to the bathrooms and locker rooms associated with their identified gender, but the eight-page document was in fact much broader, covering topics ranging from the use of identifying pronouns to housing and overnight accommodations.
The May 13, 2016 Dear Colleague Letter was grounded in Title IX. The February 22, 2017 Dear Colleague Letter, however, found that the prior guidance documents failed to "contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process." The February 22, 2017 Dear Colleague Letter noted that the prior guidance resulted in significant litigation. That litigation included a decision from a federal court in the Eastern District of Texas that bars federal agencies from enforcing the guidance and from initiating civil rights investigations in schools, finding the term "sex" unambiguously refers to biological sex and that, in any event, the guidance was "'legislative and substantive' and thus formal rulemaking should have occurred prior to the adoption of any such policy."
While the repeal of this guidance is hardly surprising given that President Trump had promised to do so during his campaign, the action may provide some glimpses as to how the new administration will enforce other areas of Title IX, most notably the guidance regarding campus sexual assault set out in the April 4, 2011 Dear Colleague Letter and follow-up guidance, including the April 29, 2014 Questions and Answers on Title IX and Sexual Violence.
Secretary of Education Betsy DeVos was vague about the issue during her confirmation hearings. When asked by Senator Bob Casey, D-Pa., for her commitment that she will keep up the Obama administration's vigorous enforcement of the issue, she was non-committal, stating, "If confirmed, I look forward to understanding the past actions and current situation better, and to ensuring that the intent of the law is actually carried out in a way that recognizes both the victim . . . as well as those who are accused."
Over the past six years, the Obama administration has been at the forefront of addressing the problem of sexual assaults on college and university campuses. Traditionally, the Department of Education Office for Civil Rights (OCR) regulated colleges and universities through interactive consultation. Through the issuance of the April 4, 2011 Dear Colleague Letter and subsequent guidance on sexual assaults, however, the OCR issued its interpretations on Title IX and its recommendations for compliance. What followed was enforcement by the OCR through investigations, document reviews, witness interviews and focus groups to determine if schools were complying with both the law and the recommendations set forth in the OCR's guidance. These investigations usually resulted in a public resolution agreements where schools agreed to implement the OCR's recommendations. The results of the OCR's efforts included greater attention to sexual violence matters on campus as well as a belief among many that the OCR was forcing its recommendations on schools.
The reasoning of the February 22, 2017 guidance could, one may argue, apply with equal force to the OCR's guidance on addressing sexual assaults on college campuses under Title IX. The reasoning of the Texas district court case cited in the February 22, 2017 Dear Colleague Letter - that the guidance on transgender student access to school facilities is "'legislative and substantive' and thus formal rulemaking should have occurred prior to the adoption of any such policy" - also could apply to the April 4, 2011 Dear Colleague Letter and subsequent Title IX guidance documents issued by the OCR. That position has certainly been articulated by Republican members of Congress, including Senator James Lankford of Oklahoma in a series of letters with the OCR, where he is critical of the OCR's promulgating a regulatory scheme without notice and comment as required under the Administrative Procedures Act.
Further, while the law seems settled that Title IX prohibits hostile environments created as a result of sexual assaults on campus (as opposed to the question of whether Title IX prohibits discrimination against transgender individuals), the actual guidance set forth in the April 4, 2011 Dear Colleague Letter and follow-up guidance from the OCR seem to go far beyond the "deliberate indifference" test set forth by the U.S. Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
But will the Trump administration really seek to roll back the April 4, 2011 Dear Colleague Letter and subsequent guidance, which enjoy a much longer history than the transgender guidance and have been a major focus of on- and off-campus activism? Further, will schools that now have robust policies and procedures in place even want to modify those programs if they are permitted to do so? Only time will tell.
On one hand, in a public statement that accompanied the February 22, 2017 Dear Colleague Letter, Secretary DeVos reaffirmed that her agency has "a responsibility to protect every student in America and ensure that they have the freedom to learn and thrive in a safe and trusted environment" and stated that, "[a]t my direction, the Department's Office for Civil Rights remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools."
On the other hand, the president of Liberty University, Jerry Falwell, Jr., who will be the leader of a higher education task force for President Trump, has publicly expressed concern that colleges and universities are over-regulated as well as his interest in eliminating the burdens imposed by Title IX guidance. And amidst the uncertainty, the Supreme Court is set to decide by June a Title IX case brought by a transgender high school student who was designated as a female at birth and who is challenging a Virginia school board's decision to block him from using the boys' bathroom. The key issues in that case will be the legality of the OCR's expansive interpretation of Title IX to include issues of gender identity and whether courts should extend deference to unpublished agency letters that do not carry the force of law.
Additional guidance on this issue may come from a lawsuit that is currently pending in the U.S. District Court for the District of Columbia. In Doe v. Lhamon, No. 1:16-cv-01158, a student and a university are challenging the Department of Education's authority to issue and enforce the OCR's Title IX Dear Colleague Letters. That lawsuit claims, among other things, the Title IX Dear Colleague Letters are unenforceable because they were not adopted with the formal rulemaking steps outlined in the Administrative Procedures Act.
In light of all of these moving pieces, it would be prudent for colleges and universities in the short term to take a wait-and-see approach and continue their current efforts to comply with the OCR's guidance on Title IX. Indeed, whether the OCR continues its expansive guidance and enforcement efforts or not, for a host of reasons, colleges and universities are unlikely to significantly roll back the reforms they have made over the past six years.
But the OCR may scale back its enforcement and apply the reasoning of the February 22, 2017 guidance that that "there must be due regard for the primary role of the States and local school districts [or colleges and universities] in establishing educational policy." In that situation, institutions may gain more flexibility in deciding what policies and procedures work best in their own campus environment, with less uncertainty that each decision will be scrutinized by the OCR. This may allow institutions to direct their resources to the specific sexual violence issues impacting their campus through innovative, creative and effective approaches.
And for those hundreds of institutions with pending complaints with the OCR, it will be interesting to see whether the OCR continues to aggressively take schools to task and publicly criticize their failure to adhere to the details of the OCR's guidance. During the coming months, schools will continue to read the tea leaves to see where the Trump administration is headed with Title IX enforcement. In the meantime, institutions would be prudent not to make significant changes in what they are doing. It also is important to keep in mind that whatever the Trump administration may do with respect to this issue, some of the prior guidance on sexual assault was reduced to law with the Violence Against Women Reauthorization Act of 2013 and some state laws that have even greater requirements than federal law. Further, schools must always be mindful that they could face civil liability for mishandling cases of involving sexual violence.
About the Higher Education Practice Group
Pepper Hamilton's Higher Education Practice Group helps colleges, universities and preparatory schools identify, prepare for and solve their most complex legal issues. A full-service law firm with more than 450 lawyers and 13 offices throughout the country, Pepper has represented clients in higher education throughout its more than 125-year history.
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The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.