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higher education in the age of trump
In Title IX Industry, Chaos and Confusion

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.

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  • QET

    Congress should repeal Title IX. It cannot be either fixed or usefully “clarified,” or its scope narrowed. It has long since achieved its purpose and now is merely a blunt object used to beat people one resents for sheer joy of it. If and when it develops that women are once again relegated to second class status at colleges and universities, Congress can re-pass it. Armies de-mobilize following victory and bureaucratic armies should do the same.

  • Jim__L

    I like the old British toast, “Confusion to our enemies!”

    • Andrew Allison

      “To the confusion of our enemies.” J. Robert Oppenheimer

  • Disappeared4x

    A lawyer in DoJ or OCR, in 2013, turned words into the crime of sexual assault. DJT45 will need George Orwell to undue the damage done.

  • LarryD

    Universities should get out of investigating crimes entirely. Turn any accusations over to the local police, who are supposed to handle criminal investigations and are set up for it. Dismiss the kangaroo court setup completely.

  • FriendlyGoat

    1) This is probably not the kind of “deregulation” at the top of the GOP “deregulation list”.
    2) Like “wardrobe malfunction” we should expect that “grab ’em by the _____” never quite goes away on these kinds of subjects.
    3) Not just everything in legislation can be done on budget reconciliation.
    4) As a serious prediction, I would guess that the Trump administration’s public discussion at first on this will proceed from a woman like KellyAnne Conway who will inform everyone that “real girls don’t get mistreated” or some such thing.

    • SDN

      You’re right, it will be a never-failing source of ways to mock you Leftists.

      Not everything has to be done on (Federal) budget reconciliation; we can do a lot in the 30+ states we control the state budgets to eliminate the positions of any diversity goons…. and any resisters who advocate non enforcement of immigration laws, etc.

      • FriendlyGoat

        My prediction is that Trump will hide behind a skirt to mock the college sex issue. Your hero is not him. It’s your crush on Kellyanne, Cheer up. You’ll be seeing so much of her for these kinds of subjects.

  • markterribile

    I do not want chaos and uncertainty. I want fear and paralysis as these high-on-ideology crimnocrats face withdrawal from power and the raging emnity of their victims.

  • Blackbeard

    When a new player takes the field a useful first step is to take some of the opposition’s pieces off the board. This shows a seriousness of purpose. My humble suggestion is that a few of the elite ivies (Harvard, Princeton, Yale etc.) would be good targets. The charge would be disparate impact sex discrimination. Has any of those schools ever prosecuted a female for sexual misconduct? I doubt it. The universities would argue that they were only doing what the OCR told them to do, but a “Dear Colleague” letter does not have the force of law. They should have refused and made OCR take them to court. Instead they were pathetically eager co-conspirators. A nice fine in the hundreds of millions, damages to the many male students harmed and a permanent federal monitor to ensure better behavior in the future would be appropriate remedies. And the next time some power crazy lefty administration comes to town they’ll be more careful about following clearly illegal “suggestions.”

  • Bob Parkman

    It was first claimed that 20% of women were raped in college, but it was pointed out that crime statistics don’t support that. Then, the claim was modified to be 20% of women were sexually assaulted in college. When crime statistics still didn’t support that claim, the definition of sexual assault was expanded to things that merely made women “uncomfortable” like whistling and ogling.

    This evolution is remarkable similar to global warming morphing to climate change and then to weather.

  • mm2003

    “[A]n 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.”

    Is this a real sentence? Did you hibernate through 2016? If your theory is that Trump doesn’t want or thrive on controversy, you’re going to be very surprised for the next eight years.

    I’d expect him to go much further than just getting rid of the Obama guidance. Why not issue his own? It’s just as easy to say that schools lose all federal funding if they don’t adopt a clear and convincing evidence standard as it is to do with the preponderance of evidence standard.

    Equal rights for men, or else.

    • patriarchal landmine

      unfortunately, his controversial stance will probably end up being the exact same one all tradcucks rely on. telling those “faggot losers” to “man up” and accept the blame for everything bad that happens to women.

      right up until society turns women into bacteria.

  • jburack

    I did not vote for Trump. But on this I only hope he lives up to his reputation fully. The entire anti-due process monstrosity needs to be destroyed. And if colleges “resist” as the love to do when it costs them nothing, I dearly hope the administration will make sure it DOES cost them and cost them plenty. My guess is that will sober all of them up quickly. I hope.

  • Mad Max

    It’s simple…Higher Ed should not be in the business of investigation and adjudication of any illegal activity. Law enforcement and the justice system is where investigation and adjudication should take place (where the Constitution guarantees a presumption of innocence, due process, trial by jury, etc.).

    The real problem is that the administrators running Higher Ed want to make and enforce their own extra-Constitutional laws . If something is not illegal on the street, it shouldn’t be illegal on campus. If Higher Ed continues down this path, any funding or benefits they receive from taxes should be suspended (including all Government-backed student loans and grants).

    Higher Ed and the Department of Education are running a leftist inquisition using Title IX as cover. I hope Robert Shibley is appointed to run the Department of Education’s Office of Civil Rights.

  • “…near-universal anti-Trump horror on college campuses will make the climate more favorable to sexual assault activists.”

    I believe that the Center For Effective Branding of Progressive Causes would go to Defcon 1 over the use of the term “sexual assault activists”. As Inigo Montoya would say, “I do not think it means what you think it means.”

  • JWJ

    Simply issue “guidance” from OCR that it would be Title IX discrimination not to offer due process in any university hearing. Any university administrator that is deemed not to have provided due process could be personally held liable for monetary damages as well as the university itself.

  • Rick Caird

    We need another “Dear Colleague” letter that advocates referral to the criminal justice system and complete due process for any internal investigation including a full description of the complaint, the complainant, legal representation, and the ability to interview and question witnesses.

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