University lawyers applaud Trump’s new Dept of Ed Civil Rights officials

Inside Higher Ed reports on the NACUA meeting here:

… “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.”

…

• 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. …

The NYT’s editorial board is less enthusiastic.

Presumably this means that UO’s new responsible reporting policy is safe from the OCR, for a while.