Legally Speaking (Insight on the Issues)

Title IX in Transition Under Trump

It is still too early to predict the precise future of Title IX enforcement on college campuses under the Trump administration, but significant change seems likely. The Obama administration made Title IX enforcement and sexual violence prevention central public policy issues for higher education; neither seems likely to have such prominence going forward. The Trump administration and the Republican Congress have signaled their interest in rolling back regulatory burdens on higher education. (Remember, of course, that the courts also play a prominent role in the Title IX enforcement calculus and the messages from the bench could be impactful, too). Moreover, Title IX issues likely will be prioritized behind major national agenda items such as health care and immigration reform, and other education issues such as higher education lending/funding/accreditation, and K–12-specific issues. We should prepare to spend a significant amount of time waiting to hear more in this time of transition.

Institutions of higher education may well experience a cooling down of federal enforcement efforts — possibly even substantial revision/retraction of guidance documents (such as the well-known 2011 Dear Colleague Letter generated during the Obama administration). However, the Obama administration’s goal of creating culture change around issues of sexual violence and sex discrimination will likely live on in states with laws and mandates that mimic Title IX requirements (such as exist in California, for instance) and through voluntary compliance efforts there and elsewhere. Key stakeholders will continue to expect colleges to provide reasonably safe learning environments free from sexual violence and will challenge campuses if compliance efforts appear to be motivated solely by fear of fines, federal investigations and/or litigation. In many ways higher education is now branded to Title IX in a broad sense, independent of federal intervention.

Compliance Will Evolve

Revisions to Title IX technical standards will come as compliance continues to evolve. We are likely to see more emphasis on “respondent rights” issues such as due/fair process for students accused of violating campus policies (including, perhaps, revisiting the contested “preponderance of the evidence” standard) and definitions of consent. Title IX is not designed to supplant the criminal justice system; expect to see efforts to improve criminal justice responses to sexual violence and reporting to the criminal justice system. Finally, the Obama administration placed a great deal of emphasis on LGBTQ rights in its enforcement efforts, including mandates on transgender bathrooms (now in litigation). The federal government may drop its lawsuit on the bathroom issue, but questions loom with respect to the broader direction of the new administration on LGBTQ rights.

Perhaps the biggest change we will see may be in a shift to even more aggressive campus culture and climate work; 2017 promises to become the year of advocacy and advocates. Brace for the potential of a significant increase in speech and expressive conduct/association — and student press issues. Title IX compliance may have been sparked by the catalyst of federal enforcement but the reaction is now self-sustaining. Most campuses today have significant Title IX staffing and a solid institutional commitment; state law often reinforces campus commitments; stakeholders on campus are advocates; even accreditors have shown interest in making some Title IX standards operational in accreditation standards. Our culture and climate work will expand well beyond annual surveys and focus groups, and I suspect rather quickly as well.

Us vs. Them

One of the big take-aways from the recent national election cycle is that many Americans do not live or work in communities where they are sufficiently protected from sex discrimination or sexual violence. College communities have come to embrace the spirit of Title IX — to reduce or eliminate sex discrimination — but for many Americans our communities do not reflect theirs. Sadly, sex discrimination and sexual violence are all too common but are more likely to be addressed in wealthier college-educated communities and college campuses. To keep the flame of Title IX alive we must address sex discrimination and sexual violence for every American, not the privileged few on or near college campuses. We may have unintentionally become myopic in focusing Title IX on ourselves, in our bubble. We can start to rectify this by doing expanded culture work that involves listening to our communities and learning from them about how to meet the challenges of creating more that just college Title IX islands in America.

Many of us are already imagining how Title IX compliance will continue to evolve in two, four, even 8 to 10 years. What we can expect is that the spirit of Title IX will endure, particularly because we have been so successful in breaking down barriers to education created by discrimination and violence — there is still so much more work to do.

This article originally appeared in the January 2017 issue of College Planning & Management.

About the Author

Peter F. Lake is professor of law, Charles A. Dana chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law in Gulfport, FL. He is the author of The Four Corners of Title IX Regulatory Compliance: A Primer for American Colleges and Universities (Hierophant Enterprises, Inc. 2017). Professor Lake can be reached at lake@law.stetson.edu.

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