NAICU Washington Update

Education Department Contemplates Changes to Campus Sexual Assault Policies

July 11, 2017

In a break with its predecessor, the Trump Administration appears to be taking a new approach to campus sexual assault enforcement. Although the Department of Education continues to open new Title IX investigations, the agency has recently signaled a shift in its priorities. Specifically, the Department has announced changes to its campus sexual assault enforcement efforts, and it has indicated that it may rescind the controversial 2011 and 2014 Title IX sexual assault guidance.

On the enforcement side, Candice Jackson, the Deputy Assistant Secretary of the Department’s Office for Civil Rights (OCR) and current acting chief, issued an internal memorandum last month directing OCR staff to treat all complaints equally, regardless of the type of discrimination in question. The memorandum also instructs OCR staff to focus investigations on claims raised by the complaint, rather than following its former systemic approach, which looked beyond initial allegations to see if there were larger problems at an institution under investigation.

Collectively, these changes are likely to de-prioritize the focus on sexual assault discrimination that prevailed during the Obama years, as well as significantly curtail the length and breadth of investigations.  Given the controversial nature of the initial guidance, any change to that guidance is likely to be equally contentious.

Meanwhile, Jackson has been meeting with various stakeholders, including higher education associations, seeking input related to possible revisions to the Title IX guidance. Among the changes being contemplated is the revocation of the campus sexual assault guidance, followed by publication of a more flexible set of proposed regulations that would be developed via notice-and-comment rulemaking. Such regulations would likely establish a series of principles based on fairness, but would let institutions adapt these principles to their own campus cultures and missions. Education Secretary Betsy DeVos will conduct a listening session in July with representatives of sexual assault victims and accused students, as well as college presidents and general counsels.

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