In the Time of Trump, Colleges Start to ‘Make Title IX Our Own’

The day after Donald J. Trump won the 2016 presidential election, Crystal C. Coombes heard a version of the same question several times: “Do you still have a job?”

Ms. Coombes is the senior deputy Title IX coordinator at the University of South Florida. She helps oversee how the institution responds to — and attempts to prevent — sexual assault as part of its compliance with the federal law on gender equity in education.

Her position was created in 2014, as her university bolstered its commitment to Title IX after a landmark “Dear Colleague” letter from the U.S. Department of Education’s Office for Civil Rights spelled out how colleges should handle sexual-misconduct allegations.

The letter made clear that the Obama administration would become more aggressive in using Title IX to police such misconduct, and the civil-rights office, known as OCR, made good on its word: It has since opened nearly 400 investigations into colleges to review their response to sexual violence.

Conservatives were among the strongest critics of the office’s approach. So after President Trump’s victory, speculation abounded that his administration would scale back Title IX oversight — and that, as a result, some colleges might curtail their efforts to combat sexual violence.

Ms. Coombes believes Title IX officials have a more important role to play than ever. Reports of sexual misconduct at many institutions are on the rise, and she thinks that suggests students know what to do and where to go if they are assaulted. “You have students who now expect the right thing to be done,” she says.

Colleges also have other sexual-violence-related obligations beyond recent federal guidance. The Campus Sexual Violence Elimination Act, a series of amendments to the Clery Act that were passed as part of the 2013 reauthorization of the Violence Against Women Act, includes reporting and education requirements. A handful of states, including California and New York, have passed laws with additional mandates.

But as the world of Title IX enforcement remains dynamic, with an unpredictable president in charge, colleges are left with many questions and few answers, says Peter F. Lake, a Title IX expert who leads the Center for Excellence in Higher Education Law and Policy at Stetson University. “We’re building houses on the San Andreas fault line,” Mr. Lake says.

The Chronicle recently asked Title IX administrators at a range of institutions and experts on the law to weigh in on how the Trump administration has altered the fight against campus sexual assault — and on how they’re adapting to the new political climate. Here’s what they had to say.

Administrators are uncertain about what’s to come.

The new leaders of the Department of Education have sent mixed messages on Title IX, says Taylor Sinclair, system director of Title IX for the Nebraska State College System.

Candice Jackson, acting head of the civil-rights office, sent a memo to her staff this month that weakened requirements for investigating complaints. Under the Obama administration, Title IX complaints often triggered a broader review of a college’s handling of sexual-assault reports; Ms. Jackson’s memo directed the OCR staff to cut back on that approach.

In theory, that could help clear out a backlog of investigations, Ms. Sinclair says. On average, Title IX cases opened since 2011 on college campuses have taken nearly two years to resolve, and some have taken five or six years.

But the department has also proposed significant budget cuts in the civil-rights office, Ms. Sinclair says, and those cuts would hamper attempts to improve efficiency.

“Universities are definitely concerned, just in general, about what’s going on with the Department of Education and getting a clearer sense about what the message is and how they will be there to support us,” says Jennifer L. Ball, Title IX coordinator at Clarkson University, in New York. She’s also an assistant professor of humanities there.

Administrators are particularly apprehensive about potential shifts in the federal government’s position on three issues, Mr. Lake says. First there is the “preponderance of the evidence” standard, laid out in the “Dear Colleague” letter, which guides colleges to determine that a student has violated a campus sexual-misconduct policy as long as the violation is judged more likely than not. Critics have called for the restoration of a higher standard, “clear and convincing” evidence.

Second, there is the practice of cross-examination during campus hearings, which the 2011 letter discouraged. Finally, many lawmakers feel sexual-misconduct cases should be handled by law-enforcement officers, not college officials.

For now, though, the civil-rights office has continued to open and close investigations, and officials there are continuing the Obama-era practice of releasing a weekly list of colleges under Title IX investigation.

Little has changed in the day-to-day lives of Title IX officials.

“We really can’t afford to change anything drastically right now,” says Oriana Jiménez, Title IX coordinator at Rollins College, in Florida.

Both students and parents continue to have expectations about how institutions should handle sexual-violence issues, she says, and students know more about their Title IX rights than ever before.

“At the end of the day, in my role as Title IX coordinator,” she says, “if a student comes to me and asks how to file a complaint against Rollins, I have to tell them.”

For now, colleges should stay the course and carefully follow their policies, says Olabisi Ladeji Okubadejo, a lawyer who used to work in the civil-rights office and now represents and advises colleges on Title IX matters.

“It’s clear that we’re not in the same environment,” Ms. Okubadejo says, noting the Trump administration’s decision to withdraw Title IX guidance pertaining to transgender students. But in terms of how campuses are responding to sexual violence, she adds, “things are pretty similar to the way they were five months ago.”

While most colleges aren’t scaling back, money remains a pressing issue for many.

At the University of Denver, the Title IX office is expanding. “We haven’t slowed down one bit,” says Eric Butler, the Title IX coordinator.

Mr. Butler was hired two years ago as a full-time investigator, around the time when a full-time Title IX coordinator was brought on board. Soon the office will grow to eight people, once the university hires a third investigator. “It’s not an effort to comply with the law anymore,” he says of the expansion. “It’s an effort to do what’s best for our students.”

Some of his colleagues elsewhere, however, are far more constrained in what they can spend. Given the financial problems facing many colleges, both public and private, beefing up Title IX enforcement can be a tough sell, says Ms. Coombes, of South Florida.

She predicts that most Title IX offices will plateau in size and spending. “If you don’t have OCR guidance saying ‘you have to do this’ under a resolution,” she says, “you won’t see new positions being created unless it’s absolutely necessary.”

Small colleges have found it especially difficult to keep up with the civil-rights office’s stringent standards, says Jody Shipper, who has worked on Title IX issues for both the University of Southern California and the University of California system. She and Cherie A. Scricca, a longtime administrator and Title IX consultant, run a nonprofit group called Project IX, which offers low-cost compliance help to small colleges.

Are institutions Ms. Shipper works with cutting Title IX positions because they expect less-aggressive federal enforcement? “They’re certainly not adding any,” she says.

Outside consultants will continue to have a role to play, says Frank C. Merckx II, dean of students at Drew University, in New Jersey. “The Title IX powerhouse agencies that really took off after 2011 are still pumping out some good information.”

But most colleges in the long term can’t rely on consultants, whose services can cost tens of thousands of dollars, Ms. Coombes says. “At the campus level,” she says, “we can’t afford this.”

A quieter civil-rights office could give colleges a chance to reflect and chart a sustainable path forward.

“If OCR takes a more-passive approach, or we see a decrease in federal complaints,” Mr. Butler says, “schools might be in a position to reorganize in a way that will be more effective and more efficient for them, based on the resources they have available.”

For small colleges, guidance from the civil-rights office has often felt as if it was one-size-fits-all, Ms. Scricca says. For instance, institutions have faced pressure to hire someone who does only Title IX work, no matter the size of the campus. Some small colleges are now evaluating whether a stand-alone Title IX position is necessary, Ms. Shipper says.

Many colleges drafted sexual-assault policies based primarily on model language from other institutions, without thinking through what the language meant in practice on their particular campus, she says.

And since the 2013 Campus Sexual Violence Elimination Act requires colleges to offer assault-prevention and assault-awareness programs to new students and employees, many institutions have turned to third-party vendors and paid a high price to provide such programs each year.

Why not make better use of campus resources? Ms. Scricca asks. Many colleges could turn to faculty experts on gender-based violence and to their own theater and art departments to develop engaging, low-cost programs on preventing sexual assault, she suggests.

Lawsuits by victims and accused students are piling up.

Lawsuits stemming from campus sexual-assault cases were already increasing before the 2016 election. Most experts expect that trend to continue as more students turn to the courts, instead of OCR, to seek justice.

The biggest uptick in litigation has come from students who feel they were wrongly found responsible for sexual misconduct.

“We really don’t want to be fearmongers,” Ms. Shipper says. But she’s honest with college officials who bring up the subject: There is a lot of litigation already, and there will be more.

Lawsuits brought by accused students often cite a lack of equitable treatment during the process of adjudicating misconduct allegations. That’s sparked debate about the kind of assistance colleges should offer the accused.

Most colleges list resources for sexual-assault victims prominently on their Title IX websites, and some have hired or designated confidential advisers for students who are victims. But many don’t clearly outline the help that’s available to accused students.

That’s changing, says Ms. Sinclair, of the Nebraska State system. Some institutions are also creating “navigators” — people on a campus who can serve as guides for students who face serious allegations and are not sure about the next steps, Ms. Sinclair says.

Her institution doesn’t yet have one, she says, but “it’s a goal of mine to move in that direction.”

Much of the activity on campus sexual assault could soon play out at the state and campus levels.

Experts and campus officials say they wouldn’t be surprised if the civil-rights office simply withdrew the 2011 “Dear Colleague” letter and stopped there. It’s a typical Republican move to leave decision making to the states, says Mr. Merckx, the Drew official.

He is part of a New Jersey task force that, for the past year, has convened administrators, law-enforcement officials, and sexual-assault experts to brainstorm ways the state could combat campus sexual misconduct. He hopes other states will try that collaborative model.

Denver’s Mr. Butler expects more states will soon consider turning parts of the federal sexual-assault guidance into law and standardizing a definition of consent. “We have a unique opportunity as institutions to go to our state policy makers and take the pieces that are most effective and most attractive, and work that into state law,” he says.

But recent OCR directives have created consistent guidelines for how all colleges should handle sexual-violence reports. Simply withdrawing the letter could result in a patchwork of policies.

Some states could require their colleges to use a particular standard of evidence when determining if a student violated a campus sexual-assault policy; California already mandates the “preponderance of the evidence” standard that the “Dear Colleague” letter told institutions to use. Other states could allow colleges to pick the standard they think is best. Institutions that operate in more than one state could be left in a quandary.

“It could become a free-for-all for every state,” Ms. Shipper says.

The federal government’s commitment to civil rights will ebb and flow with each new administration, and Title IX offices must think long term, Mr. Butler says. “It’s really easy to get caught in the here and now about what the compliance landscape looks like,” he says.

Ultimately, says Stetson’s Mr. Lake, it’s up to colleges, not the federal government, to figure out how to get more students to report sexual assault, how to reduce incidence rates, and how to run fair processes.

Now that the civil-rights office seems less active, that’s exactly what many institutions are doing, he says: “We’re starting to make Title IX our own.”

Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.