With Donald Trump winning the presidential election on Tuesday -- and with Republicans maintaining control of both the Senate and House of Representatives -- victims and their advocates worry that the White House’s five-year push to combat campus sexual assault may end with President Obama’s tenure.
Through detailed guidance documents and investigations at more than 200 institutions, the Obama administration made preventing campus sexual assault a signature issue of its Education Department. The administration's updated interpretation of the federal gender discrimination law Title IX of the Education Amendments of 1972 allowed the White House to sharply increase the enforcement efforts of the Department of Education’s Office for Civil Rights. The intensified focus on campus sexual assault and Title IX prompted an outpouring of complaints and lawsuits against colleges and universities over claims they mishandled reports of sexual violence.
Trump, who faces allegations of sexual assault and criticism over his treatment of women, has said little about how he would approach sexual violence on college campuses. While his Democratic opponent, Hillary Clinton, reached out to several victims' organizations during the election, Trump contacted none. His lack of a plan has worried many victims’ advocates, and comments made during the campaign by some of Trump’s surrogates suggesting that, if elected, Trump would scale back Title IX, or even eliminate the Department of Education or the Office of Civil Rights, has caused more concern.
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At the same time, advocates for students accused of sexual assault are hopeful the new status quo could bolster their attempts to require more due process protections for those students.
In an interview with Inside Higher Ed in May, Sam Clovis, the national co-chair and policy director of Trump's campaign, suggested moving the Office for Civil Rights to the Justice Department's civil rights division. At a meeting with urban school superintendents last month, Trump’s New York state co-chairman, Carl Paladino, characterized the Office for Civil Rights as unnecessary, calling it “self-perpetuating, absolute nonsense,” and saying all campus discrimination cases should be handled by U.S. attorneys.
“That would be disastrous for survivors and devastating for anyone who cares about their children being able to go to school without fear of violence or harassment or intimidation,” said Dana Bolger, co-founder of Know Your Title IX, a victims’ advocacy group. “The opportunity to learn is a fundamental American value, central to the American dream. We've got to keep supporting OCR if we want that dream to survive for the next generation.”
Eliminating the Office for Civil Rights would not be easy, as it was formed through the Department of Education Organization Act in 1979, the same federal law that created the Education Department. While OCR’s handling of Title IX has its share of critics in the House of Representatives and Senate, there has been little indication of either chamber broadly supporting the complete abolition of OCR, even with a Republican majority and president.
But if the office remains intact, there’s little chance its level of funding will remain or increase. Many experts on Title IX have predicted that a Trump administration would cut OCR’s budget, effectively limiting the number of investigations it could conduct at a time when the office already struggles to keep pace with the number of cases it has opened. As of last year, it took OCR, on average, 940 days to complete a sexual assault investigation.
Currently, the Office for Civil Rights still has 216 open investigations.
Ann Franke, a higher education consultant and former campus Title IX official, said she doubts a Trump Education Department would maintain the public list, started by the Obama administration in 2014, of colleges that are under investigation. The investigations that remain open when Trump becomes president will also likely be judged by a different set of standards and rules than cases that were settled during the Obama administration, she said.
“I would expect between now and Jan. 20, [the Obama administration's] OCR is going to be working to reach a lot of resolution agreements with a lot of institutions under investigation,” Franke said. “And I suspect institutions will have new leverage in negotiating resolutions over the next couple of months.”
In 2011, the Department of Education’s Office for Civil Rights issued a Dear Colleague letter that urged institutions to better investigate and adjudicate cases of campus sexual assault. The letter clarified how the department interprets Title IX, and for the past five years it has been the guiding document for colleges hoping to avoid a federal civil rights investigation into how they handle complaints of sexual violence.
Republican lawmakers have argued that the guidance goes farther than just clarifying Title IX. They say the department has illegally expanded the gender discrimination law’s scope -- increasing the liability for institutions dealing with bullying, harassment and sexual violence and relaxing the burden of proof institutions are required to use when adjudicating cases of sexual assault -- without going through proper notice-and-comment procedures.
The department maintains the guidance did not create any new laws or policies, however, and serves only to fill in some of the vaguer parts of Title IX in order to help colleges not run afoul of the law. The debate has split college leaders, lawmakers, advocates and legal experts -- and led to three lawsuits against the Education Department.
“With these lawsuits against the Department of Education, all the new administration has to do is just not defend the case,” said S. Daniel Carter, a campus security consultant and former director of the 32 National Campus Safety Initiative. “That would roll back many of the provisions of the Dear Colleague letter, including the requirements about what burden of proof colleges must use.”
While Trump has not said whether he plans on changing any guidance or funding related to Title IX, the Republican Party did include campus sexual assault and Title IX as part of the platform it released at the GOP convention in July. Scott Schneider, a lawyer and adjunct professor of higher education law at Tulane University, said that the platform points to a "significant regulatory shift" under a Trump administration.
Calling sexual assault a “terrible crime,” the Republican platform stated that reports of sexual assault should be “investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge.” It criticized the Obama administration’s policies, saying the White House’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.”
Trump could issue new Title IX guidance, based on the GOP’s platform, that would replace the 2011 Dear Colleague letter. Any new guidance would likely focus more on the due process rights of accused students and instruct colleges to use a higher burden of proof, such as the “clear and convincing” or “beyond reasonable doubt” standards of evidence, rather than the "preponderance of evidence" standard.
Senator James Lankford, an Oklahoma Republican who has been among OCR’s most vociferous critics, said the election may have given him and others who have decried the department’s “egregious examples of executive overreach and intimidation” some new allies.
“[The Department of Education has] used Dear Colleague letters and guidance documents to mandate policies for schools without adhering to legally required regulatory processes,” Lankford said. “It is extreme overreach at agencies like the Department of Education that the American people repudiated in this election. I will push our new Republican-led Washington to put a stop to this abuse and restore proper regulatory and guidance processes to the federal government.”
It wouldn’t be the first time a president rolled back Title IX guidance created during an earlier administration. In 2010, the Obama administration revoked a controversial 2005 Title IX clarification issued under President George W. Bush that only allowed institutions to use internet or email surveys when determining female students’ interest in athletic participation. The 2005 guidance had already wiped out a 1996 clarification issued under President Bill Clinton.
Similarly, Clinton’s Education Department issued a new set of sexual harassment guidelines under Title IX on his last day in office in 2001. On Bush’s first full day as president, his administration “archived” the document, removing any references to the guidance from the department’s main webpages.
Lisa Maatz, vice president of government relations at the American Association of University Women, said it’s too early to predict exactly what a Trump presidency will mean for the future of campus sexual assault because Trump has offered so few specifics.
Maatz said she is hopeful, however, that Trump’s decisions will, in part, be influenced by a need to improve his public image. Several women have accused Trump of sexually assaulting them, and one of the most damaging moments of his campaign stemmed from a leaked recording of him boasting about how he has groped and kissed women without their consent.
“Speculation is difficult, but I don’t need to remind the president-elect that on this particular issue, he has a bit of a credibility gap because of his reputation,” Maatz said. “Whatever he wants to do, the changes he proposes will surely be viewed with some healthy skepticism, and we hope he will be sensitive to that.”
Maatz said most colleges would continue giving increased attention to campus sexual assault and that she believed the grassroots movement started by college women, which prompted Obama’s actions in the first place, will also continue, no matter who is president. Bolger, of Know Your Title IX, offered a similar assessment.
“We're going to carry this country forward, not backward, no matter the barriers our political leaders put in our way,” Bolger said.