Last week, I wrote about the history of Title IX and what the law was designed to accomplish. However, since the law was passed in 1972, its purpose has evolved from regulating schools’ admissions offices and athletic fields to monitoring their bedrooms and bathrooms. This piece of legislations expansion is the result of actions undertaken by the Judicial Branch and Executive Branch. But, for the purposes of this article, we will examine how Title IX addresses the issue of sexual assault.
What is the Office for Civil Rights (OCR)?
OCR is an office within the Department of Education. It’s mission is to “ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.”Some of the many civil rights enforced by OCR are those established under Title IX.
But how exactly does OCR carry out its responsibility to enforce?
You can think of OCR as performing two primary functions. First, issuing rules and guidance for schools to best understand how to maintain compliance with the federal government’s anti-discrimination laws. Second, investigating complaints filed by alleged victims of illegal discrimination. OCR either works towards resolution agreements with the schools acting in violation or subjects those schools to possible losses in federal funding; even worse, The Department of Justice issues punishments.
What is the 2011 Dear Colleague Letter (DCL)?
On April 4, 2011 the OCR released what they referred to as a “significant guidance document” designed to “provide recipients with information to assist them in meeting their obligations, and to provide members of the public with information about their rights, under the civil rights laws and implementing regulations that [are] enforce[d].”
Sounds harmless right? Well not really. This 19 page document, known as the 2011 DCL has become one of the most controversial means of enforcement by OCR to date.
There has been a lot of debate regarding the way in which the 2011 DCL was issued with the Foundation for Individual Rights in Education, former OCR officials, and insightful law professors. They claim that it violated federal codes regarding the proper level of public commentary, among other things.
Additionally, the substance of the DCL itself created controversial federal requirements for schools when it comes to investigating and adjudicating complaints of sexual harassment/violence on their campuses.
As Will Creeley writes, OCR’s “requirements presented [in the DCL] grave threats to student rights, particularly due process and freedom of expression.”
In short, the issuance of the 2011 DCL under President Obama’s administration ushered in a new era of strict Title IX enforcement. One does not need to look any farther than the data compiled by The Chronicle of Higher Education’s Title IX project to see how much of an impact this law has had.
The Chronicle reports that “in this era of enforcement, the government has conducted 399 investigations of colleges for possibly mishandling reports of sexual violence. So far, 62 cases have been resolved and 337 remain open.”
Only time will tell how the Trump administration will impact this trajectory. However, given the high level of controversy President Trump would be stepping into if he were to reverse course on this issue, it is highly unlikely that there will be any major alterations, especially if he has ambitions of running for re-election in 2020.