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The Trump Administration’s New Regulations On Campus Sexual Assault Have Just Taken Effect. What Wil

One of President Obama’s most controversial decisions as president was to drastically change the way its Office of Civil Rights (“OCR”) handled allegations of sexual assault on college campuses. It issued guidance letters that discouraged colleges from granting accused students a hearing before punishing or expelling them and required colleges to lower the level of proof required to punish or expel accused students.

The OCR also aggressively investigated colleges for possible violations of these new rules and encouraged them to adopt procedures that gave accused students very little opportunity to defend themselves. Fearing investigations and bad publicity, many colleges adopted draconian protocols that went even beyond what the Obama administration demanded. There were cases where students weren’t told what they had done wrong (only what codes they allegedly violated) or who the witnesses against them were, and there were cases where students were given only a few days’ notice that they were accused of any wrongdoing before they were suspended or expelled as sex offenders. In some cases, the colleges added new charges of wrongdoing without informing the student and actively discouraged exculpatory witnesses from coming forward without telling the accused student of their existence. (I cover all these cases in my book, Campus Sexual Assault: Constitutional Rights and Fundamental Fairness.)

This was all done in the name of enforcing a law called “Title IX,” which prohibits gender discrimination in education. Title IX doesn’t mention sexual assault or sexual harassment so different presidential administrations have given colleges very different messages about how to handle allegations of sexual wrongdoing. But the Obama administration was especially aggressive. It issued new directives without following the dictates of the Administrative Procedure Act, which requires new rules to be made public well before they are implemented so that the public can comment on those rules. Obama took the position that the new rules were mere “clarifications” so they could be implemented just by the OCR writing letters to colleges.

While the Trump administration has been awful about following the Administrative Procedure Act (and, as a result, has had many of its policies struck down by the courts) it has been far better than the Obama administration concerning Title IX. It revoked the OCR letters and, as of last Friday, replaced them with a detailed set of rules that were subject to vigorous public comment. Substantively, while imperfect, they are a vast improvement.

Most importantly, the new rules give accused students the right to a hearing. This has long been considered the bare minimum that due process requires before accused students are seriously punished. But the Obama administration had insisted that a hearing might discourage sexual assault victims from coming forward. It pushed an inquisitorial model, where one investigator could decide which witnesses to interview, what to ask them, and how to weigh the evidence. That person could decide guilt or innocence and expel a student as a sex offender without the student having any real idea of what the evidence against him was.

The new rules make other important improvements, such as forbidding the college to presume a student’s guilt before a hearing. That means that a college can’t just kick an accused student out of his dorm or keep him from attending his classes in the name of protecting the alleged victim. It is understandable that a college would want to keep an alleged victim and alleged perpetrator apart, and schools can still take emergency measures to remove an alleged assailant from campus if there is an immediate threat to the physical health and safety of the alleged victim. But the Obama-era rules allowed egregious abuse. Writing in the Harvard Law Review Forum, law professor Janet Halley told the following story about a client of hers who lost his student housing and campus job just because he reminded another student of the man who assaulted her:

“I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.”

Unfortunately, there are some significant problems with the new rules too. For example, they dictate that Title IX does not apply to sexual assault at off-campus parties or study abroad programs even if both the assailant and victim are students at the same college. That’s a big problem. If a student is assaulted by a fellow student, that will interfere with the victim’s education regardless of where the assault took place.

Presidential candidate Joe Biden has promised a “quick end” to the new rules if he is elected. It is ironic that a man who insisted on being granted a presumption of innocence for himself when he was accused of sexual assault is so eager to take that presumption away from others. The new rules do have some real problems as well as major improvements to the Obama era rules. Biden has promised that he will reach out to Republicans and govern in a bipartisan manner if elected. Given that this is an issue in which both sides have valid concerns, this is an ideal issue for Biden, if elected, to show that he means it.

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