Can Trump Undo Obama's Title IX Tyranny?
If the spirit of the Obama administration endures anywhere, it will be in the form of a policy directive from a small office in the Department of Education. The prime example of fiercely ideological federal overreach of the Obama years, the 2011 "Dear Colleague" letter from the department's Office of the Civil Rights reinterpreted (or distorted, depending whom you ask) Title IX of the Nixon-era Higher Education Act —and made a mess of campus sexual assault policies. When it comes to straightening it all out, there may be no Trumpian overhaul sufficient to undo existing campus practices—short of a federal intervention equal and opposite the Obama administration's.
The 2011 guidance forced colleges and universities to investigate and adjudicate claims of sexual discrimination, from alleged rapes to offensive language, in on-campus tribunals according to a sub-legal preponderance of evidence standard. Education's OCR required colleges and universities to play by the government's rules or else give up government money and face the fire of a federal shame campaign. Schools complied, under financial and reputational duress, and many went harmfully overboard, following the administration's lead.
Too often students accused of a violation will not receive notice of their charge, let alone the opportunity to prepare a defense, until a disciplinary decision has been meted out by administrators acting as Title IX coordinators, who receive minimal mandatory training.
In April, Inside Higher Ed reported increasingly many accused students had been winning cases to overturn Title IX disciplinary rulings, on the grounds that they lack any semblance of a balanced process. One case at Brandeis University, a he-said-he-said between ex-boyfriends, failed sufficient notice and due process according to federal judge F. Dennis Saylor, who found, "Brandeis appears to have substantially impaired, if not eliminated, an accused student's right to a fair and impartial process."
In October, OCR itself determined that Delaware's Wesley College had denied an accused student his equal rights. (Under OCR's rules for Title IX, whatever right the complainant receives, such as counsel or calling witnesses, the accused should also have.) OCR, while well-intentioned, created a monster—and quickly lost control.
And, although the severity of these sometimes recklessly supported allegations spurs the strongest pushback, Title IX investigations are not limited to sexual assault. In one emblematic case, a female student at the University of Oregon came under Title IX investigation and threat of disciplinary action for shouting a cheeky joke out her dorm window.
What can a Republican president do to correct an overcorrection? Because the controversial guidance never went through the standard approval process for a federal agency regulation, under President Trump, "the new head of OCR could simply issue a new 'Dear Colleague letter' rescinding the previous Dear Colleague letter," said lawyer and Twisting Title IX author Robert Shibley, who has referred to the guidance as "an intentional deception."
The Foundation for Individual Rights in Education, for which Shibley is executive director, has condemned the federal assault on due process under OCR's Title IX mandate. "As for [eliminating] OCR," Shibley added, "it was established by Congress, so that would be a congressional decision."
Still, whatever a Trump administration decides to do, or to ask of Congress, adjudication practices are already folded into campus life. Whether a Republican Congress eliminates the Department's Office of Civil Rights altogether or a Trump-appointed OCR director reverses the guidance and refocuses OCR's efforts, college and university administrators reluctant to heed Trump's call won't have to.
While President-elect Trump has not offered a policy plan to counter his predecessor's on campus sexual assault, his campaign made explicit reference to OCR's disregard for free expression, an unalienable right already deeply diminished on many campuses. And this year's GOP platform condemned Education's warped and ineffective use of Title IX, only after condemning the criminal acts the OCR guidance attempts to combat. "The Administration's distortion of Title IX," the platform reads, "must be halted before it further muddles this complex issue."
It's a "muddle," to use the party's word, not easily unmuddled. It's a deep bureaucratic rot, spread from a confused federal government down to every faculty lounge, that can't be simply un-putrefied.
"I don't think there will be a huge loss of ground," said Brett Sokolow, CEO of the National Center for Higher Education Risk Management and the Association of Title IX Administrators, a group that has doubled in size every year since 2011. On college campuses, "Those structures won't be dismantled overnight, given the nature of bureaucracy and the ponderous path to change that characterizes modern universities."
"Changing a college is like trying to turn a cruise ship," Sokolow added.
Although overturning the controversial directive would be a simple matter of OCR's issuing a second guidance, it is not a simple fix. Bureaucratic habits die hard, and especially so on campuses. And while some will welcome the opportunity to scale back a costly implementation, many more may intensify their existing efforts in response to a federal government considered by progressives, and Joe Biden, to be complicit in rape culture.
If the guidance is undone and the Office of Civil Rights effectively defanged, Obama-appointed federal judges will fill the void, Sokolow projected. "80 percent of federal judges are Obama appointees, and are likely to feel strongly about the need to enforce Title IX if a vacuum in administrative enforcement results.
"Ongoing Title IX lawsuits, such as an accused and expelled former University of Virginia student's active suit against the Department of Education, will continue to play out, Shibley said.
But, under the new administration we might see "an OCR that recommits itself to protecting students from discrimination, while also ensuring that students' fundamental rights are respected." This, Shibley said, "would be an enormous change for the better regardless of what happens in court."
The Trump-era OCR might redirect itself to counter campus censorship and devote significant efforts to protecting free expression and ensuring fair and equal campus tribunals process sexual assault claims.
If they were to play by the Obama administration's rule book, Trump's OCR might even issue a funding-backed mandate to colleges public and private demanding that they cease or reform their previous Title IX processes and, while they're at it, eliminate censorious speech codes.
On the other hand, if Trump were to dissolve the guidance but not replace it, colleges and schools would continue to address the issue of sexual violence, but "without having best practices dictated to them from on high," Sokolow said.
If this president chooses not to be a vindictive authoritarian, even though precedent permits it, and simply reverses the burdensome Title IX guidance OCR issued in 2011, he would be standing against the imperious executive branch of the past eight years.ave to.