by Aimée Sutton
After handling several recent Title IX student discipline cases in Washington State, I sometimes think I should invest in a portable breathalyzer and pre-printed consent forms before I send my own kids off to college.
But that was then. If some Congressional Republicans have their way, the rules may drastically change in the Trump administration. North Carolina Congressman Mark Meadows has called for revocation or re-examination of the Title IX guidance document on sexual assault and campus rapes in the first 100 days of the new administration.
What’s at issue is the regime for Title IX enforcement that’s been in place for the past six years. In 2011 the Office of Civil Rights (OCR) in the U.S. Department of Education issued its “Dear Colleague” letter to colleges and universities. The letter, which is really guidance for the universities, lowered the standard of proof in these cases to a preponderance of the evidence. Inside Higher Ed has called the letter the “guiding document for colleges hoping to avoid a federal civil rights investigation into how they handle complaints of sexual violence.”
The letter was, at least in part, a reaction to decades of lax discipline of rape. As schools began to implement its directives, however, many thought it swung the pendulum too far in the opposite direction. They argued that it was unfair to students accused of sexual misconduct. Under its guidance many students received long suspensions or expulsions through processes that seemed to heavily favor the accuser over the accused. Campus officials and lawyers would often explain the harsh results based on minimal evidence by saying, “This is not a criminal case, it’s an educational process. The standards are different here.”
The OCR guidance applies equally to public universities, like the University of Washington, and private ones, like Pacific Lutheran University and Whitman College.
Title IX enforcement was controversial before the election, and things have only heated up since. No one really knows what to expect from Donald Trump’s Department of Education. On the one hand, you have the law-and-order promises of the campaign. On the other, you have pressure from Congressional Republicans. An additional factor is having a leader who has himself been accused of multiple incidents of sexual assault.
If the 2011 rules are revoked or significantly revamped, it could have big ramifications for student disciplinary proceedings. However, colleges and universities could also exercise their independence even if the guidance is revised. They could reject any relaxation in enforcement as tainted by biases of the Trump Department of Education.
We’ll be staying tuned so we can continue to help our clients in these difficult cases.