Every constituency and interest group involved with the increasingly complex and expensive process of campus sexual assault adjudication—administrators, consultants, victim advocates, due process hawks, and defense attorneys—is waiting with bated breath to see how the incoming administration will navigate the explosive terrain of Title IX enforcement. Inside Higher Education highlights the uncertainty swirling around the industry as to whether the administration will reverse the Obama administration’s aggressive measures reducing due process for students accused of sexual assault—and if so, what kind of effect that will have on the ground.
With Donald Trump winning the presidential election last month and this year’s GOP platform stating that the White House’s work on the issue “must be halted,” many believe the next incarnation of the department will scrap the 2011 guidance, allowing colleges to return to using whatever standard they deem appropriate. That doesn’t mean, however, that use of the preponderance of evidence standard will dramatically decrease, even while some administrators worry about no longer being able to point to the department’s guidance when they are sued by students who believe their due process rights were violated.
There is no way to know exactly what actions the administration will take in this area, especially because a new head of the Office for Civil Rights in Education (the agency responsible for promulgating Title IX regulations) has yet to be appointed. It seems reasonable to expect that some of the Obama-era guidance will be rolled back, although an administration run by someone who has made comments that would likely be enough to convict him in a campus proceeding might be cognizant of the political optics of acting too aggressively in this area.
Then there is the possibility that no matter what action the Trump administration takes or doesn’t take on Title IX, near-universal anti-Trump horror on college campuses will make the climate more favorable to sexual assault activists. Much of academia has sworn to resist the Trump administration; this might entail a further leftward lurch on key culture war questions. Then again, if schools go too far in reducing due process, it’s not inconceivable that an enterprising right-leaning (or civil libertarian) head of OCR could take campuses to task for violating Title IX by discriminating against male students.
As with much else about the incoming Trump administration, the unsettled area of campus sexual misconduct law is highlighting the perils of government-by-executive-regulation (something that the New Yorker’s Jeannie Suk has discussed with respect to the transgender bathroom issue). To avoid further creative partisan rule-making on such an important and charged question, Congress would be well-advised to pass real legislation clarifying what Title IX actually requires, the mandate of various agencies charged with enforcing it, and its relationship to federal funding in higher education.