The moment is here.
If you’re involved in sexual assault prevention and response on a college campus, probably you, like me, have wondered what direction the Trump administration and Secretary of Education, Elizabeth DeVos, will take the Department of Education’s efforts to enforce Title IX and address sexual assault on college campuses. Honestly, the wait has been killing me.
Oh sure, there have been hints over the past six months: statements during DeVos’s confirmation hearings; newly-appointed OCR head Candice Jackson’s comments delivered to an audience at the National Association of College and University Attorneys; and an internal memo providing new directives to OCR investigators are just a few. But nothing to say that yes, for sure, the 2011 Dear Colleague Letter (and probably the 2014 Questions and Answers on Title IX and Sexual Violence) will be reviewed and possibly revised or retracted.
A recent New York TImes article, however, has helped to put this speculation to rest: Secretary DeVos is meeting with impacted students and their advocates as well as university administrators to learn more about this issue, and Acting Assistant Secretary Jackson has all but announced the intended review publicly, noting that she sees “a red flag that something’s not quite right” when it comes to campus sexual assault policies and processes.
This review is likely to have some (and possibly even significant) impact on the guidance offered to colleges under both the 2011 DCL and the 2014 Q&A. But, will it have much impact on prevention efforts to end sexual assault?
Probably not. And here’s why.
First, while the 2011 DCL and the 2014 Q&A do set forth some guidance on sexual assault prevention and education efforts that campuses are expected to follow, it doesn’t appear that the guidance on prevention, education, and training is the intended focus of the DoE’s review. If the guidance is revised, these pieces are more likely than others to remain in place.
Moreover, even if the 2011 DCL is revised to exclude the specific recommendations related to training and education of staff and faculty, or is retracted entirely, the 2001 OCR Guidance does still have some reference to training of staff with specific responsibilities for ensuring an institution meets its Title IX obligations and training students as a means for remedying a hostile environment. After all, as the preamble to the 2001 guidance reminds us “[p]reventing and remedying sexual harassment in schools is essential to ensuring a safe environment in which students can learn.”
But even more importantly, any review of the OCR guidance does not impact the VAWA amendments to the Clery Act regulations at all. And, while OCR guidance doesn’t have the force of law, the prevention education programs outlined in the VAWA Amendments to the Clery Act are required by federal law. The more extensive and detailed regulations related to prevention, education, and training of students, staff, and faculty are all in the Clery statute and regulations–and further explained in the 2016 Clery Handbook.
Requirements to provide training to all incoming students and employees? In Clery. Requirements for ongoing training? In Clery. Requirements for annual training of personnel with investigation and adjudication responsibilities? That’s right–in Clery.
So while there may be uncertainty related to some important aspects of campus responsibilities for addressing sexual misconduct, the requirement that campuses continue to provide significant training to its students, staff, and faculty is clear.
And that is great news for the health and safety of our college and university communities.