Trump Administration May Back Away From Title IX, but Campuses Won’t

November 11, 2016

Win McNamee/Getty Images
Under pressure from President Obama’s Education Department, colleges have transformed how they respond to students’ reports of sexual misconduct, and those practices are unlikely to change, experts say.
Although federal oversight of how colleges handle sexual assault is bound to subside —­ and could even disappear — under a Trump administration, campus officials and victims’-rights advocates believe institutions will remain focused on the issue.

"There’s going to be a sea change in the country, and we really don’t know what all that’s going to look like," said Laura L. Dunn, founder of the advocacy group SurvJustice. "But I’m not worried about campuses no longer addressing sexual violence."

Under pressure from the Obama administration, colleges have transformed how they handle students’ reports of sexual assault under the federal gender-equity law known as Title IX. While for years students accused institutions of ignoring complaints and shielding alleged perpetrators, the U.S. Education Department’s Office for Civil Rights put campuses front-and-center in a broader campaign by the administration to crack down on sexual misconduct.

The civil-rights office issued "Dear Colleague" letters and other guidance requiring colleges to handle complaints promptly and fairly, and often in very specific ways. Institutions that didn’t comply have risked a high-profile, costly investigation by the federal government — and, theoretically, the loss of all federal funds. The civil-rights office is currently investigating more than 200 institutions following complaints that they mishandled sexual-misconduct cases.

The Trump White House is likely not only to shelve those investigations and cut back on enforcement, said higher-education observers, but may also look to the courts instead of colleges to deal with allegations of sexual assault. That’s what the Republican Party endorsed last July in its platform at the Republican National Convention.

Sexual assault, said the platform, "must be promptly investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge." It also said the Obama administration’s "distortion of Title IX to micromanage the way colleges and universities deal with allegations of abuse contravenes our country’s legal traditions and must be halted."

Still the Law

The right-leaning American Enterprise Institute on Thursday hosted a panel of policy analysts to unpack how issues affecting colleges might stand under President-elect Donald J. Trump.

Frederick M. Hess, director of education-policy studies at the institute, predicted that the Trump administration would revisit the role of the civil-rights office, known as OCR. "The Obama team has very consciously made OCR something like a policy lever, partly because [the president] couldn’t get anything through the legislative branch," said Mr. Hess. "I think you can be certain that OCR will be downsized and be less prominent in a Trump administration."

But even though colleges are likely to face much less pressure from the federal government, that doesn’t mean they’ll stop following the letter or the spirit of Title IX. Just as campuses have disciplinary procedures for other types of student misconduct, they probably will continue addressing allegations of sexual assault.

Even though the particular manner of enforcement may change, Title IX will still be law, and regulations written to carry it out will still be obligatory. What could change, though, are the precise ways in which the civil-rights office more informally advised colleges to adjudicate assault complaints.

Under the guidance from the civil-rights office, campuses are required to use a "preponderance-of-the-evidence standard" in analyzing whether an alleged perpetrator is responsible for assault. That standard means that a college can hold an alleged perpetrator responsible if it determines that the accusations were more likely than not to be true. The standard differs from the one that courts use ­— guilty beyond a reasonable doubt.

It hasn't been just the federal government but campus activists and advocacy groups, as well, that have pushed colleges to pay more attention and devote more resources to stopping sexual assault.

"For many schools, the reason they’ve changed their policies on sex assault and may keep them in place has more to do with the internal political climate," said Matthew G. Kaiser, a lawyer who has represented students accused of sexual misconduct. If institutions dismantled their efforts, he said, students, faculty members, and many outside observers would respond critically.

‘A Perpetual-Motion Machine’

In addition, colleges have built systems over the past several years to try to both prevent campus sexual assault and respond when it occurs. Those mechanisms are unlikely to be abolished. "Now that it’s there," said Mr. Kaiser. "It’s like a perpetual-motion machine."

Dana Scaduto, general counsel at Dickinson College, agrees. "This is an issue that belongs to higher education and its students now," she said. "Whether or not we see a great deal of interest under the Trump administration, I think it is still an issue that is relevant and timely on our campuses, and I don’t think anybody wants to back away from this."

“Institutions are going to remain focused on this issue because it is the right thing to do.”
Said a Title IX officer at one university who asked to remain anonymous: "Institutions are going to remain focused on this issue because it is the right thing to do. We also worked so hard to raise awareness on this issue in the last few years that students are really attuned, and they wouldn’t allow institutions to walk away from this commitment."

Ms. Dunn of SurvJustice said colleges wouldn’t be able to back away altogether, even if they wanted to. That’s because some of the guidance from the civil-rights office on how they must handle sexual assaults is now written into law.

"SurvJustice has known that Title IX guidance is just that ­— it does not have the force of law, and it can change administration to administration," she said. Her organization successfully pushed to include requirements that colleges address sexual assault in the 2013 reauthorization of the Violence Against Women Act. "While Title IX guidance could be repealed and Title IX enforcement could be substantially undercut," said Ms. Dunn, "we have these legal protections now."

Lexey Swall for The Chronicle
Catherine Lhamon, assistant secretary of education for civil rights, said last summer that she would like to close "as many investigations" of colleges as she can before the end of President Obama’s term, but a growing backlog of complaints has contributed to a "distressing caseload" for her staff.
A spokeswoman for Catherine E. Lhamon, assistant secretary of education for civil rights, declined to comment and referred a reporter to Mr. Trump’s transition team. Ms. Lhamon has a burgeoning backlog of complaints to investigate before President Obama’s term ends. "I’d like to be able to close out as many investigations as I can," she said last summer. But across all areas of enforcement, each investigator has a "distressing caseload," she said.

Lawyers and campus administrators who have developed and shaped how campuses address sexual assaults want to persuade the next administration that the issue is important, and that the federal government should find some way, possibly a less-expensive, less-prescriptive way, to keep it a priority.

Over the years, people on campuses and off have complained that the civil-rights office was overstepping its authority by being so prescriptive about how colleges should handle reports of sex assault. More flexibility in those procedures could be welcomed by many.

Gina Maisto Smith, a lawyer who has helped many campuses respond to investigations by the civil-rights office and improve their practices, said there are more efficient and businesslike ways to handle Title IX enforcement.

Rather than regulate colleges, the new administration could develop a database of good ideas for dealing with campus sexual assault and ask colleges to audit their own actions and present the audits to the civil-rights office.

"You still maintain oversight," she said, "but you ask colleges to give you their best solutions of how they are going to do Title IX right."

Sarah Brown contributed reporting to this article.

Robin Wilson writes about campus culture, including sexual assault and sexual harassment. Contact her at