On September 22, 2017, Secretary of Education Betsy DeVos and Acting Assistant Secretary for Civil Rights, Candice Jackson, rescinded two U.S. Department of Education guidance documents on schools’ responsibilities under Title IX of the Education Amendments of 1972 (“Title IX”): the April 2011 Dear Colleague Letter (“2011 DCL”), and the April 2014 Questions and Answers on Title IX and Sexual Violence (“2014 Q&A”). The 2011 and 2014 guidance documents outlined school responsibilities under Title IX when addressing student-on-student sexual harassment and sexual violence. The guidance documents, once rescinded, were replaced with interim guidance, known as the September 2017 Q&A on Campus Sexual Misconduct.

These guidance documents impact how a student interacts with the adjudication process on a college campus when filing a Title IX complaint. A school’s complaint procedure can have the ability to provide or impede a student’s equal access to education. Therefore, the implications of rescission impact various student populations who may face barriers throughout the process of filing a Title IX complaint, especially undocumented students and the larger documented immigrant community.

Guidance documents from a federal agency are typically formalized through a rulemaking process, and are not laws, though the guidance documents often intersect with, and cite a wide range of laws and cases. Guidance documents from the Department of Education Office for Civil Rights inform institutions of higher education about their requirements to be in compliance with federal civil rights laws. This article will offer an overview of the relevant civil rights laws, cases and Dear Colleague Letters as they pertain to the potential implications of DeVos and Jackson’s decision on undocumented and immigrant students. It will also explore the known impact of the 2011 DCL and 2014 Q&A being rescinded, and highlight the many unknown questions raised by this recent action as it pertains to the unique situation for documented and undocumented immigrant students regarding their Title IX rights.

Keep Reading Changing Title IX Enforcement Under Secretary Devos and the Impact on Immigrant and Undocumented Students