Colleges and students are better off now that Obama era “Dear Colleague” letter is rescinded

September 09, 2020 | By ALISON SOMIN

Recently, the Department of Education’s Office for Civil Rights (OCR) rescinded a Dear Colleague letter that addressed the role of Title IX coordinators on college campuses. This is excellent news for all the reasons I discussed in an op-ed in The Hill calling for repeal of the Dear Colleague letter.

What do Title IX coordinators do? Their core duty, at least in theory, is to monitor their institution’s compliance with Title IX of the Education Amendments of 1972, which helps ensure that institutions receiving federal money do not tolerate sexual harassment that seriously interferes with victims’ educational opportunities.

Although stamping out genuine sexual harassment is a worthy and important goal, regulators’ zeal has sometimes warped enforcement in ways that violate students’ free speech and due process rights. It also has contributed to a bloated education bureaucracy that dreams up new ways to justify its existence. During the Obama administration, OCR issued widely criticized guidance documents elaborating on—and often unreasonably expanding the interpretation of—what counts as harassment. These documents imposed new duties on regulated schools based on a serious misreading of the law and were instituted without following the appropriate procedures for public notice and comment.

Fortunately, the Trump administration has withdrawn some of the worst guidance documents and issued binding regulations that discourage schools from curtailing students’ fundamental rights. This last set of revocations included the Title IX coordinator “Dear Colleague” letter, which was both substantively and procedurally flawed—because legal policy should not be set by guidance documents with the threat of financial sanctions behind them.

As a substantive matter, the term “coordinator” appears nowhere in Title IX itself. The role originates from a 1975 regulation (34 C.F.R. 106.8) that told funding recipients they had to designate a responsible employee to handle Title IX compliance. The requirement prompted almost no public comment at the time, probably because it was unobjectionable by itself. Yet onto this slender bureaucratic reed, the Obama administration grafted a complex regulatory regime that essentially created privately administered “sex bureaucracies” within every funding recipient’s management.

Under pressure from this guidance, many colleges and universities expanded their Title IX offices substantially, along with the roles they perform. As I recounted in my op-ed in The Hill:

Harvard University has by my count 58 compliance staff members. Yale University has 22. Even tiny liberal arts colleges have significant Title IX offices: Middlebury has one main Title IX coordinator and six deputies; Amherst has one coordinator and six deputies; Haverford has one and eight deputies.

As these offices have grown, staff duties have expanded to include work going beyond ensuring compliance with the law and instead promoting the “spirit” of Title IX. One Swarthmore coordinator noted to the media that these “jobs are really not just about compliance anymore, but also about campus climate.”

What are these offices doing to promote Title IX’s spirit? As Jeannie Suk and Jacob Gersen discuss in a 2016 California Law Review article, “The Sex Bureaucracy,” many have gone beyond preventing unlawful sex discrimination and instead have expanded into lecturing students on what used to be seen as highly personal decisions about pursuing “healthy” or “safe” romantic and sexual relationships. Most of us learned foundational relationship skills such as “Always use ‘I’ statements” and “Don’t interrupt your partner” from partners, friends, clergy, or private therapists. Yet Title IX coordinators at Swarthmore and the University of Illinois have taken it upon themselves to propound such advice to students.

“Is bureaucracy the antonym of desire?” Suk and Gersen ask. Certainly many of us would think so. Are bureaucrats hired to enforce a nondiscrimination statute really well-equipped to serve also as essentially relationship therapists? Much of their advice may be noncontroversial, but some may be less so, especially to students who hold traditional or religious values. Is it infantilizing to young adults to treat them as needing this kind of hectoring? Because of the pandemic-related economic downturn, many universities are in a particularly tight financial situation right now. Wouldn’t it make sense for regulators to give them some more flexibility in this area?

In line with traditional rule of law principles, the Trump administration has prioritized stopping unlawful agency use of guidance documents. An executive order from last fall required agencies to be more transparent in issuing guidance, and a memo from then-Associate Attorney General Rachel Brand similarly tried to rein in abuse of guidance documents at the Department of Justice.  It is gratifying to see the administration follow through on this commitment and repeal this problematic document.