Under the Obama administration, virtually everyone on campus was deputized to report anything that could constitute a sexual violation—including rumors and hearsay. Most school employees were designated as mandatory reporters, responsible for alerting Title IX officials about possibly questionable sexual encounters, even if a supposed victim had no interest in reporting. This has resulted in students being labeled as perpetrators and punished even when no victim has come forward, or when the alleged victim strenuously objects to the adjudication. Capturing the tenor of the times, Drexel University’s Title IX office adopted a Homeland Security-style motto: “See something, hear something, know something, say something!”
All this would be rolled back under Trump. According to the Times, the new rules would significantly narrow the definition of what constitutes sexual misconduct on campus, adopting the Supreme Court’s definition of sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”And no longer would campus officials be expected to have all-encompassing awareness of possible sexual misconduct on campus—unless these officials exercised deliberate indifference. Under Trump rules, schools would now be liable for the way in which they handle formally filed Title IX complaints.
During the Obama administration, the aegis of Title IX expanded to cover the world. Some male students have been punished on their own campuses for sexual encounters that took place over the summer, or far away, or even with young women who weren’t students at their school. The Trump proposal would limit a school’s liability to sexual encounters that take place on campus or during a school-sponsored program in the U.S. But this extreme narrowness is troubling. Most college students don’t live in dorms, and many disputed sexual encounters take place in nearby off-campus housing and at fraternities. This change would unduly restrict accusers from bringing complaints about encounters with fellow students that took place during the school year; let’s hope it gets reconsidered.
One of the most criticized Obama mandates was the requirement that schools assess allegations of sexual misconduct using the lowest legal standard, “preponderance of the evidence,” or what is numerically rendered as anything over a 50 percent likelihood. The Trump rules would give schools the option to use a higher standard of “clear and convincing evidence,” often described as at least 75 percent certainty.
Justin Dillon, a Washington, D.C., attorney who represents accused students around the country, says the option of choosing the clear and convincing standard is “completely hollow” because schools simply won’t do it (a handful of states have laws requiring preponderance). During the past year, while waiting for DeVos’s promised proposals, many campus officials declared their opposition to Trump reforms, vowing in particular to stick with the preponderance standard. Dillon says he is skeptical that DeVos’s procedural improvements will substantially change Title IX proceedings. One proposal would require schools to share the evidence in the case with the complainant and respondent. But in Dillon’s experience, schools don’t know how to gather or weigh evidence, and often they are not interested in exculpatory texts or other materials offered by the accused.