Earlier this month, my colleague blogged about concerns that a weaker federal Department of Education (DOE) in the Trump Administration would mean less protection against discrimination and harassment for minority students. Under Obama the DOE took strong, sometimes controversial, positions in the name of anti-discrimination, for example, issuing numerous guidance documents instructing schools on how to address sexual harassment and sexual assault, and interpreting Title IX to protect transgender students. In the views of its critics, DOE often went too far in issuing these rules, both because it circumvented the normal rule-making procedures for administrative agencies, and because in many instances its guidance letters seemed to directly conflict with the free speech and due process rights of students.
It seems safe to assume that sexual harassment prevention is not high on Trump’s priority list. During the presidential campaign videos surfaced of him discussing sexually assaulting women and more than a dozen women came forward to accuse him of having done just that, and his sons — who played key roles in his campaign — have both indicated that women who do not like being sexually harassed either should not work, or should find a different job. Given that fact, and his stated antipathy to the DOE, it seems quite likely that his administration will do an about-face on both the scope of the DOE’s work, and its positions on key title IX issues. But will the administration’s positions change anything on campus?
In the last five years colleges and universities have set up sexual harassment adjudication procedures, including revamping their school policies, creating Title IX offices, and hiring Title IX coordinators, in order to meet the DOE’s guidelines, even when that meant going far beyond what Title IX and other federal statutes and regulations actually require. I do not think there is any question that DOE’s action in this area spurred those changes. However, I do not believe that if DOE stops pushing schools to demonstrate harsh responses to sexual misconduct allegations it will trigger a massive recalibration of schools’ approaches to handling those allegations. For one, schools have invested an enormous amount of money and time into creating massive Title IX bureaucracies to investigate and address sexual misconduct complaints. Now that those systems are in place, schools are not likely to dismantle them because of a change in administration. Perhaps more saliently, in the last three years or so a social movement criticizing and calling out schools that activists believe do not handle sexual assault complaints appropriately has gained in influence. The last thing any college wants is to be known as a school that does not take sexual assault seriously. Activists have done an impressive job of creating online (and in-person) protests when they believe a school (for example Stanford, Brown, or Columbia) has mishandled sexual assault complaints. Public perception, as much as fear of DOE investigation and potential withdrawal of federal funds (a potent threat DOE never carried out) drives schools’ sexual misconduct machinery and its tendency to eschew fair processes in favor of the accusing party.
Recently, though, even while the DOE and fear of negative publicity have put pressure on schools to set up systems that presume guilt when a complaint of sexual misconduct is made, and that deprive students (both complainant and accused) of access to hallmarks of traditional notions of fair proceedings, the courts have begun weighing in on what the law requires. In many cases, the courts’ decisions on the scope of Title IX, due process, contract law, and concepts of “basic fairness,” have required more procedural safeguards for students accused of misconduct and questioned the gender-neutrality of the current sexual misconduct systems. For example, as my colleague has previously discussed, the Second Circuit recently allowed a Title IX case by a male accused student to go forward, letting him make the argument that Columbia discriminated against him because of gender. The District Court of Massachusetts recently issued a wide-ranging decision criticizing most aspects of how Brandeis handled its sexual assault cases. A federal court in Ohio just held that students at public universities are entitled to cross-examine their accusers in sexual misconduct cases, and a California appellate court found that USC’s processes were unfair where it didn’t inform students of the factual allegations against them. These cases are beginning to form a cohesive body of law that outlines the contours of what legally acceptable sexual misconduct processes can look like.
The systems that were put in place because of schools’ fear of DOE investigation are not likely to go away, nor should they if we care about ensuring that students can receive their educations free from sexual harassment. But as those of us who represent students involved in these processes have long argued, when these systems were set up three to five years ago they frequently disregarded students’ rights in ways that were neither necessary nor appropriate for addressing sexual harassment on campus. Without DOE’s continued pressure, perhaps colleges and universities will have the freedom, and the incentive, to align their practices with what the law actually requires, as elucidated by the courts, and to build procedural fairness into their processes. In my own practice I have seen some moves towards fairer processes and outcomes, which I attribute both to the court decisions holding schools accountable for depriving students of due process and fundamental fairness, and perhaps a growing recognition that not every complaint states a violation of school policy or warrants disciplinary action rather than support services for the complaining student. Though this hope may be naive, if there is a silver lining to be found in the Trump administration’s likely disregard for both the DOE and sexual assault issues, it is that perhaps by removing the coercive power of the DOE from the equation schools and courts will be able to find appropriate ways to address and prevent sexual harassment while still upholding due process and fairness rights for those involved.