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‘A New Day at OCR’

Trump administration’s top two enforcers of civil rights laws for education promise college lawyers timelier, fairer treatment, but vow no “retreat” on anti-discrimination enforcement.

June 28, 2017
 

CHICAGO -- Candice Jackson and Thomas E. Wheeler Jr. received modest applause when the head of the National Association of College and University Attorneys introduced them to the roughly 1,700 lawyers attending the group's annual meeting here Tuesday afternoon.

Seventy-five minutes later, the two top Trump administration officials overseeing civil rights enforcement for higher education were treated to a warm, even grateful, ovation. That's because in between, Jackson and Wheeler told the crowd of higher education lawyers much of what they wanted to hear.

The basic message: we’re the government and, unlike our predecessors in the Obama administration, we’re here to help.

Jackson, the acting assistant education secretary for civil rights, and Wheeler, the acting assistant attorney general overseeing the U.S. Department of Justice's civil rights division, won the crowd over by rather artfully walking a tightrope that administration officials -- and many college leaders -- appear to be on when it comes to certain aspects of higher education regulation, particularly those related to the treatment of students.

Many college and university officials felt overregulated by the Obama administration, and have expressed interest in seeing that oversight eased. But few if any college administrators can afford to be seen as advocating for more latitude that might appear to come at the expense of their students -- in the form, say, of less protection for students from sexual assault, which they would roundly oppose.

So the question many of the lawyers at the NACUA conference were asking was what signals the Trump administration’s new civil rights officials would send about how to balance regulatory relief and continued, vigorous enforcement. While Wheeler and especially Jackson made clear that they have had multiple meetings with higher education groups in recent weeks, these were their first public comments to a college group, and were therefore much anticipated.

Jackson and Wheeler said unequivocally that they were fully committed to upholding federal civil rights laws. "Before we talk about the things that are changing in OCR, it's important to highlight the things about OCR’s role that won’t change. We're charged by Congress with a specific mission: to enforce the civil rights guaranteed to our nation’s students by certain civil rights laws, and we are fulfilling that charge," Jackson said.

"For those in the press and my friends with other political perspectives who have been expressing fear that … OCR is scaling back or retreating from civil rights, that's just not the case," she added. (Democratic lawmakers and advocates for sexual assault victims have accused the department of pulling back enforcement with recent changes that direct OCR employees not to automatically look for systemic patterns when investigating individual complaints, and were concerned by the Justice Department's February withdrawal of guidelines that specifically protect transgender students from discrimination and ensure that they have access to the bathrooms and other facilities of their choice.)

What will change, she and Wheeler both said, is how the Trump administration will go about fulfilling that charge -- less confrontationally and more cooperatively than how the Obama administration did. "We will reorient ourselves at OCR as a neutral, impartial investigative agency," Jackson said.

"We feel as an administration, and particularly Candice and I feel, that it is very, very important to adopt these positions, work these issues through in a collaborative approach with the people out there in the field," Wheeler said to growing applause.

Both of them offered pointed criticism of how their predecessors had dealt with colleges and universities.

"OCR has fallen into a pattern and practice of overreaching, of setting out to punish and embarrass institutions rather than appreciate their good faith and genuine desire to correct legitimate civil rights problems," Jackson said.

She pointedly accused the Obama administration's civil rights office of taking a "gotcha" approach to enforcing civil rights laws, of approaching "every complaint as a fishing expedition through which our field investigators have been told to keep searching until you find a violation rather than go where the evidence takes them."

That expansive approach, combined with OCR leaders' disinclination to let investigators in the agency's regional offices exercise their judgment, Jackson and Wheeler argued, created a huge backlog of cases, keeping colleges -- and the students who brought the complaints as well as those accused -- in limbo for "months if not years."

"I've heard from activists on all sides that they no longer recommend going to OCR because the long investigations mean that an OCR complaint is virtually worthless in terms of actually correcting a violation for a complainant," Jackson said, repeating several times: "Justice delayed is justice denied."

And all the while, much to colleges' chagrin, the Obama administration's OCR regularly published lists of institutions that had been accused of -- but not yet found to have committed -- civil rights violations, Jackson said.

She called that the "list of shame," and said that "our job at OCR is to do our job; our job isn’t to threaten, punish or facilitate drawing media or public attention" to the parties it regulates. She suggested that the publication of the lists is "high up on that list of things that will soon be addressed as the agency reconsiders various regulatory efforts as part of President Trump's administrationwide regulatory review.

Jackson and Wheeler did not take questions directly from the audience. Instead, NACUA's chief executive officer, Kathleen Santora, asked a series of questions she said had been culled from the association's members.

Most of them were aimed at teasing out what Wheeler and Jackson have in store going forward. Among the issues they addressed:

  • Jackson said that OCR is "committed to discontinuing the legally dubious practice of issuing subregulatory guidance that is then treated through enforcement as binding mandates," and that OCR would no longer impose new regulatory requirements without going through negotiated rule making or other "mandated procedures."
  • She stopped short of vowing to withdraw the most contentious recent guidance, the 2011 Dear Colleague letter regarding Title IX and sexual assault, though Jackson suggested that the agency might engage in negotiated rule making to do "what should have been done the first time around": seek input from a variety of parties to decide on a fair system for all parties.
  • Jackson was also noncommittal about whether the agency would reconsider the standard of proof that colleges must meet in their sexual misconduct disciplinary proceedings. The 2011 letter was seen as requiring colleges to meet only a "preponderance of evidence" standard instead of a more stringent "clear and convincing" evidence approach, and many Republican lawmakers have argued that the federal government should not be setting a uniform standard. "It is unavoidable that OCR will take a position," she said, and "whether or not the end result will be that the federal government mandates that particular standard of proof is actively under consideration."
  • Jackson said that the agency would open up more ways to adjudicate sexual misconduct and other civil rights cases, including making use of "early complaint resolution" processes for sexual violence and racial discrimination cases.
  • Wheeler and Jackson both insisted that, despite criticism to the contrary, the Trump administration fully intends to defend the civil rights of transgender students. "There is no doubt that [transgender students] are protected" by existing federal civil rights laws, Wheeler said. The withdrawal of the Obama administration's 2016 guidance requiring educational institutions to make their facilities available to transgender students "does not leave those students without [civil rights] protection."
  • Wheeler, citing Justice Department policy, said he could not say much about the status of federal guidance on web accessibility, which led the University of California, Berkeley, to pull video content from the public domain, citing the costs of complying with the new rule. He did say, however, that the Trump administration's regulatory review could subject rules and regulations to a cost-benefit analysis, and that that could imperil the web-accessibility standard. "We get it -- there's a tremendous burden," he said. "That’s money that ought to be spent on students."

Reactions From the Crowd (and Beyond)

Catherine Lhamon, who headed the Office for Civil Rights during the Obama administration's second term, was not in the audience at the NACUA conference (she did speak there several years ago, and was roundly booed). But Wheeler singled her out for criticism by name on one occasion, and many of the criticisms that he and Jackson leveled at OCR were aimed at her.

In a telephone interview Tuesday night, she disputed Jackson's assertion that OCR was "fishing" when it looked at an institution's history when investigating individual complaints. "OCR's charge from Congress is that it must act whenever it has information that civil rights may be violated, and if one student has been harmed, it's incumbent on OCR to look to see if there's another student who is similarly situated," she said.

She also disputed Jackson's statement that the Obama-era guidance on Title IX and other matters made new law or exceeded the agency's authority. And she said that her successors would be "abdicating the role of OCR" if they stopped issuing subregulatory guidance when questions arise about what a particular law does or doesn't do or say.

"If OCR does not tell students and the regulatory community how they’ll apply the law, then they’re playing gotcha with students’ lives," said Lhamon, who is now chair of the U.S. Commission on Civil Rights.

Of those in attendance Tuesday afternoon, the reaction to Jackson and Wheeler seemed largely favorable.

Scott Roberts, a lawyer for Hirsch Roberts Weinstein who represents numerous colleges on Title IX and other issues, said he was heartened by a lot of what Jackson said.

He said her comments "indicated that her office will start from the premise that institutions of higher education have long had a commitment to the protection of civil rights, and that OCR is looking to work with colleges and universities in a cooperative and proactive manner to address issues that may arise.

"I appreciated her perspective that OCR will act as a neutral, impartial investigator, not as a prosecutor of presumed wrongdoing," he added, a sentiment shared by many in the crowd.

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