On June 6, 2017, Candice Jackson, the Acting Assistant Secretary for Civil Rights with the U.S. Department of Education Office for Civil Rights, sent a letter to the Regional Directors for the Office for Civil Rights on complaints involving transgender students. The letter explained that since February 2017 there have been numerous developments relating to the rights of transgender students. Specifically, the letter referred to the February 22, 2017, “Dear Colleague Letter” withdrawing the Office for Civil Rights’ previous guidance on accommodating transgender students, the dismissal of the Texas v. United States case involving the May 13, 2016, “Dear Colleague Letter,” and the U.S. Supreme Court’s decision to vacate and remand the Gloucester County School Board v. G.G. case.
The recent letter explained that since the May 2016 “Dear Colleague Letter” and the January 2015 OCR letter on accommodating transgender students had been withdrawn, OCR can no longer rely on those documents when investigating complaints regarding transgender students. The letter states that, “OCR should rely on Title IX and its implementing regulations, as interpreted in decisions of federal courts and OCR guidance documents that remain in effect, in evaluating complaints of sex discrimination against individuals whether or not the individual is transgender.”
The letter re-articulated the Administration’s position from the February 2017 “Dear Colleague Letter” that the withdrawal of the previous guidance “does not leave students without protections from discrimination, bullying, or harassment.” The letter further explained “it is permissible, for example, for one allegation in a complaint (such as harassment based on gender stereotypes) to go forward) while another allegation (such as denial of access to restrooms based on gender identity) is dismissed.”
This letter further clarifies the new administration’s position on the rights afforded to transgender students and the federal government’s role in investigating discrimination against transgender students.
On June 8, 2017, Acting Assistant Secretary Jackson sent a letter to the Regional Directors for the Office for Civil Rights that changes the practices OCR use to investigate alleged civil rights violations by public school districts. Notably, the letter states that the changes apply not only to new complaints filed with OCR but also to all complaints currently in evaluation or investigation.
In sum, the new directive:
- Eliminates the mandate that a certain type of complaint automatically be treated differently than other types of complaints in terms of the scope of the investigation, type/amount of data collected, or being subject to review and oversight by OCR “Headquarters” in Washington, D.C. (In the past, certain issues had been on a “sensitive case” or “call home” list, oversight of which was directed from Headquarters instead of the Regional Office.) Instead, complaints are to be handled on a case-by-case basis, with regular consultation between the Regional Offices and Headquarters. This is to be retroactive and some cases may be returned to their respective Regional Office.
- Eliminates the investigative “rule” of obtaining 3 years of past complaint data in order to assess a school district’s compliance.
- Eliminated the “one size fits all” approach to the investigation of certain types of complaints. Instead, OCR investigative teams are to make a case-by-case determination as to the type and scope of evidence necessary as part of the investigation. The scope of an investigation is to be based on the allegations in the particular complaint and the laws, regulations, and guidance applicable to those allegations.
- Eliminates “class action” or “systemic” investigations based on individual complaints where there is no allegation of any class-wide or systemic issue. An exception is allowed where the OCR investigative team determines that a systemic approach is warranted.
- Encourages OCR and school districts to reach “reasonable resolution agreements with defined, enforceable obligations…[that] directly address the concerns raised in the individual complaint.” Also encourages voluntary settlements wherever possible.
These two recent letters provide insight as to changes at OCR under the new Administration. For questions regarding these new communications from OCR, please contact Michelle Todd, Stephanie Jones, Jennifer Mueller, or Kaitlin Atlas.