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 issue of .
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 [email protected].