States consider stacking the deck against accused students as Trump administration pulls back

Currently California, New York and Connecticut are the only states to judge college students by sexual-consent definitions that don’t apply to anyone off campus, but that could soon change.

Ashe Schow at has a roundup of state legislation that seems intended to continue the work of the Obama administration’s Department of Education as the Trump administration undoes its work.

Maine, Maryland and Texas lawmakers are looking to codify affirmative consent, “an extreme set of rules for engaging in sexual activity that are almost impossible to follow,” Schow says. Here are the conditions under which a student can be found at fault for not getting affirmative consent:

Not obtained at “every step” of the sexual encounter

Sexual activity after drinking any amount of alcohol

Accuser “felt pressured into having sex or was too afraid to leave”

California, Connecticut and Mississippi are looking to codify parts of the 2011 “Dear Colleague” letter from the feds, which “threatened to remove federal funding if schools didn’t comply” and incentivized false accusations, Schow says.

California: “all forms” of “sexual violence” (including rebuffed sexual requests) are harassment under Title IX.

Connecticut: Multiple stats on sexual-assault reports and adjudication results, the better to shame schools with few reports or few harsh penalties on accused students

Mississippi: No right to cross-examination but a higher evidence standard (“clear and convincing”) than imposed by Obama’s department

Texas is considering legislation that raises civil-liberties concerns for anyone who becomes aware of “conduct that may constitute sexual misconduct,” while Georgia has the only known bill that would largely roll back the 2011 Dear Colleague in the state.

It passed the Georgia house earlier this month, and would prevent schools from investigating sexual assault claims while police are investigating and protect accused students from “biased and poorly trained school bureaucrats,” Schow says.

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