Has anyone given them ‘a direct order’ to ditch Obama’s approach?
Even with a new administration that has promised a more streamlined approach to Title IX investigations and more fairness in campus sexual-assault proceedings, the Department of Education still acts like it answers to President Obama.
Its Office for Civil Rights, which would lose a substantial chunk of its employees under its own recent budget request, has resolved sexual assault investigations at a record pace under the Trump administration.
But a recent resolution with Butte College, a two-year institution north of Sacramento, suggests that the previous administration’s efforts are continuing against the perceived wishes of the new administration.
An attorney who closely follows Title IX investigations told The College Fix that career officials at the OCR are to blame for this “disunion,” as many regional offices are still pushing Barack Obama’s nonbinding guidance for Title IX investigations.
That’s because either “they prefer the Obama administration rules,” which imposed a low evidence standard and discouraged schools from giving accused students common due-process protections, “or because they haven’t received a direct order otherwise,” the attorney said.
Imposes double jeopardy on exonerated students
OCR’s letter of findings said it opened the Butte investigation because the college “failed to respond promptly and equitably to notice that [the complainant] had been subjected to sexual violence by another college student.” Its grievance procedures were also under investigation.
The Chronicle reported that the federal complaint was filed by attorney Jim McCabe in February 2013 on behalf of a female student who said she “was raped by an unnamed football player and that the college botched the investigation. No charges were filed.”
Butte’s resolution, released in July, requires the community college to show OCR that it has “established the responsibilities of the Title IX coordinator.”
It also requires the college to “conduct a comprehensive review” of numerous policies and procedures, including those relating to sexual assault, discrimination and student discipline.
Butte must reimburse the complainant for all expenses associated with her “medical, psychological and emotional support needs” under the resolution. All future sexual-assault investigation reports must also be submitted to OCR for review.
Butte’s only apparent success in its negotiation was implementing the resolution without “admitting to any violation of law.”
A key concern with Butte’s resolution, which the attorney told The Fix is fairly typical for OCR resolutions, is that it interferes with due process rights and inserts double jeopardy into Title IX investigations, because OCR will review all cases that “allege sexual harassment and sexual violence.”
The attorney said that if OCR determines that an incorrect conclusion was made in a school’s investigation, it can require the institution to reopen the investigation. This creates an incentive for colleges to find accused students responsible because the office is unlikely to second-guess a guilty decision by the Title IX coordinator, according to the attorney.
Obama hires were ‘all hardcore lefties’
One difference between Butte’s resolution and others typical of the Obama-era OCR, according to the attorney, is it wasn’t forced to reopen closed investigations. Southern Methodist University’s resolution, for example, required this reopening.
The Foundation for Individual Rights in Education, which is currently suing the Department of Education over the Obama-era Title IX guidance, declined to comment on the resolution.
It’s “too early to draw generalizations” regarding changes in the OCR in the Trump administration as opposed to the Obama administration, E. Everett Bartlett, president of the due process group Stop Abusive and Violent Environment, told The Fix in a phone interview.
The Butte College resolution, though very recent, was overwhelmingly handled by Obama administration officials and “is not really attributable to the new administration,” said the attorney who closely follows Title IX investigations.
The difficulty in firing bureaucrats is a significant issue in overcoming the “disunion” between career employees and political appointees, the attorney said. During the Obama years, “all hardcore lefties” were hired in career positions at regional OCR offices, which clashes with the direction of the new administration.
Some of this is the Trump administration’s fault because it has only filled a small number of political appointees in the Department of Education, so it may not know about the goings-on of the regional offices, the attorney said.
OCR is currently headed by Candice Jackson, who was appointed deputy assistant secretary for civil rights. The assistant secretary for civil rights – the formal title for OCR’s chief – requires Senate confirmation, and the Trump administration has not yet submitted a nominee.
Jackson’s main contribution as acting chief has been issuing an internal memo that signaled to regional OCR offices that all complaints should be treated the same, with no preference for one type over another.
Many ‘administrative’ closures of cases
The record pace at which sexual-assault investigations being resolved by OCR this year is partly due to the fact that many cases are being administratively closed.
The Chronicle noted that since 2011, 18 cases have been administratively closed, and seven of those have come since Donald Trump’s inauguration.
Grounds for closing a complaint administratively include a party filing similar allegations with another civil-rights agency or court or receipt of “credible information” indicating there are no systemic allegations after the allegations have been resolved.
The Chronicle also said OCR can close a complaint administratively “if a complainant withdraws his or her allegations or refuses to cooperate.” The investigation of Butte, however, was resolved through a resolution, not administrative closure.
Butte College did not respond to repeated requests for comment.
IMAGE: Pete Souza/White House