The Origins of the 2011 Dear Colleague Letter on Campus Sexual Assault

Six years ago, I filed a FOIA request for various documents relating to the origin of the Dear Colleague letter, the 2011 Obama administration guidance on Title IX that sought to crack down on campus sexual assault by requiring universities to adjust their procedures to make it more likely that accused students would be found responsible. The Education Department fulfilled the request last month. And last week, the Chronicle of Higher Education published an essay from me analyzing the documents cache.

While the Department redacted many key items, the release nonetheless provided greater clarity on the document’s origins and the atmosphere surrounding its release. The Chronicle article discusses three major themes from the documents. First was the central involvement of the Office of the Vice President—Joe Biden, rather than Barack Obama or anyone in the White House staff, seems to have been the key policy liaison for the Department’s Office for Civil Rights (OCR) as it drafted the guidance.

Second was the uncritical coverage the letter received from the press. Perhaps my favorite item of trivia from the documents cache came from an OCR media staffer, who looked through the first 233 articles published after the guidance’s release and couldn’t find a comment critical of OCR.

Third was the complete indifference to the rights of accused students. The documents show no concern that this federal pressure—one Education staffer noted that the letter showed the OCR head “speaks softly and carries a big stick”—might lead colleges and universities to overreact with the type of biased Title IX adjudications that have been far too common in the last decade.

The Biden administration’s pending Title IX regulations seek to restore the policy priorities of the Dear Colleague letter, so this issue is more than simply a historical curiosity. Some items in the documents cache likely will appear in an all-but-inevitable renewed wave of litigation from accused students once the new regulations are promulgated. The “big stick” comment provides an unusually clear demonstration of the effect federal pressure to tilt the Title IX scales can have on universities. And the consistently gendered way in which Biden approached the issue—female students as victims, male students as perpetrators—belies subsequent holdings from some courts that Title IX procedures flowing from the Obama-era pressure merely feature “pro-victim” rather than gender bias.

There was, finally, one item about the documents cache that surprised me. Contemporaneous critics of the Dear Colleague letter (including me) faulted OCR for releasing the document as guidance rather than going through the notice and comment period required for a new regulation. (The Obama administration clearly expected the guidance to be followed.) I was a bit surprised, therefore, to discover that OCR did extensively consult outside of its office—but only with other actors in the executive branch, and (to a lesser extent) with victims’ advocates. In other words, OCR wanted to hear opinions on its work—as long as those opinions came from those with a similar pro-complainant agenda. This partial willingness to seek feedback makes all the more troubling the Obama administration’s refusal to produce its new Title IX policy through the regulatory process.