Weeks after his surprise victory over Hillary Clinton, most statements about the future policies of a Donald Trump administration may as well be punctuated by gaudy gilded question marks. Will Trump abolish the EPA? Force Mitt Romney to apologize, third grader style, for saying mean things about Donald Trump earlier in the campaign? Will the new President-Elect be able to untangle himself from his many conflicts of interest? That same uncertainty also applies to sexual assault on college campuses, and whether or not the incoming administration has considered it at all.
It’s not unreasonable for sexual assault advocates to worry that a cabinet of Trump appointees might undo some of the work advocacy groups have done in recent years to hold colleges and universities accountable for unaddressed problems on campus. Trump famously bragged about committing sexual assault, was accused of sexual assault, and claimed at a speech at historic Gettysburg that he’d sue the women accusing him of the sort of sexual assault he bragged on tape about committing.
Alyssa Peterson, a policy and advocacy coordinator for the organization Know Your IX, which works with both the government and on-the-ground activists to pressure colleges and universities to crack down harder on issues that threaten equality in education, is bracing for uncertainty. “We don’t know what’s going to happen,” she told The Daily Beast. “We’ve been hearing a lot of conflicting reports.”
Samantha Harris, director of policy research at the Foundation for Individual Rights in Education (FIRE), also has no idea what to expect. “Any talk of what will happen now is pure speculation.” she said. “But we will reach out to work with the Trump administration as we did with the Obama administration.”
Future Attorney General Jeff Sessions did not seem to understand as recently as last month what the legal definition of sexual assault is. While there’s not much out there about incoming Secretary of Education Betsy DeVos’s views on how campuses should best handle sexual assault cases—in fact, Betsy DeVos has no experience working with higher education—others in Trump’s inner circle would understandably cause alarm. After all, the Trump White House now includes Steve Bannon, former head of Breitbart News, a website that once spent weeks and thousands of words trying to debunk an anecdote about date rape from Lena Dunham’s memoirs. (A cursory Googling shows that the only rape claims to which Breitbart seems to give credence are those against Bill Clinton or non-European migrants.)
As it stands, colleges and universities are legally barred from discriminating against students on the basis of sex, as set forth by Title IX, legislation signed into action by President Richard Nixon. In 2011, a Dear Colleague letter signed by Secretary of Education Arne Duncan and Vice President Joe Biden further clarified that “The sexual harassment of students, including sexual violence, interferes with students' right to receive an education free from discrimination and, in the case of sexual violence, is a crime.” In other words, institutions that leave issues of sexual assault on campus unchecked could be creating a discriminatory experience for students.
In addition, the letter mandates that schools investigating claims of sexual harassment and violence must apply a “preponderance of evidence” standard in determining whether or not the violation occurred. Put simply, the amount of evidence that exists on one side or the other doesn’t matter; schools must rule based on what they think probably happened. Schools that didn’t comply with standards set forth in the letter risk investigation and loss of funds, not to mention embarrassment.
In recent years, dozens of schools faced investigations from the Department of Education, and the reputational cost that comes along with it. No parent wants to pay $40,000 a year to send their kid to Rape University; no alum wants to open their pocketbooks to a school known for its incredible study abroad and sweeping rape apologia programs. To protect against this, some colleges and universities have put their own systems in place to assure that students who claim they’ve been sexually harassed and abused are accommodated. At the same time, universal application of the preponderance of evidence standard laid out by the Dear Colleague Letter has proven problematic for those accused of sexual assault and those concerned with due process.
The FIRE’s Harris said, “The pressure that [the Office of Civil Rights] has brought to bear on schools has led to many schools to change their processes that make it easier for them to find students guilty without regard to whether or not they’re actually guilty or not.” Harris believes that applying a higher standard to sexual harassment hearings on college campuses provides a more reliable outcome, which is beneficial to both the accuser and the accused. In an ideal world, Harris notes, the Trump administration would work with organizations like FIRE to clarify how to more fairly serve the needs of both accusers and the accused, in much the same way similar clarifications were issued regarding campus free speech in 1997, 2001, and 2003.
The debate over campus sexual assault hasn’t calmed since it began dominating headlines; if anything, it’s only intensified. Things are not likely to become less messy just because the new AG doesn’t know what sexual assault is, or because the new head of the Department of Education has no professional experience in higher education.
Every few months, one side of the debate or the other rallies behind a news story that embodies its respective concerns, each adding to the arsenal of shorthand shouted in debates that get nowhere. Earlier this year, former Columbia student Paul Nungesser filed a lawsuit against Columbia University after classmate Emma Sulkowicz accused him of rape and turned the mattress where her alleged assault took place into her senior art project, demonstrating how ill-equipped some colleges are to effectively handle complicated rape cases under the current system. This summer, the case of Brock Turner, a Stanford swimmer convicted of three counts of felony sexual assault and given only six months in jail tragically demonstrated how the justice system fails rape victims to the point that turning to the legal system sometimes seems like more trouble than it’s worth. Just weeks ago, a jury found that Rolling Stone and Sabrina Rubin Erdley had defamed a University of Virginia administrator in a debunked story of a gang rape, a stern reminder that sometimes people lie about unthinkable things. On the same day, former Vanderbilt football player Brandon Vandenburg was sentenced to 17 years in prison for raping an unconscious classmate, encouraging his teammates to do the same, and emailing a video of the assault to acquaintances, a horrifying case proving there’s something metastatic and unaddressed in current campus culture.
Theoretically, a Trump administration could take real steps to reform how the federal government interacts with colleges adjudicating harassment and assault. A new Dear Colleague letter clarifying that colleges need not uniformly apply a lower “preponderance of evidence” standard could be issued. Or, the Department of Education could change the way it enforces Title IX via the Office of Civil Rights. The DoE could theoretically stop pursuing schools with the gusto they did over the last five years. A Trump administration could also continue enforcing the Dear Colleague letter in the same manner that it was enforced under Obama’s presidency, or working to further the goals set forth by the OCR under Obama, an unexpected deference to the status quo in a year characterized by the unexpected. But no matter what Trump’s administration does, what happens moving forward will be viewed by many as a reflection of their policies, even though what happens in Washington and what happens on campuses have largely decoupled.
Peterson, of Know Your IX, is confident that even without the help of the Office of Civil Rights or the Department of Justice (which can take referrals from the OCR), too much has changed culturally to make it feasible for the Department of Education to have much bearing over what’s happening on the ground. “We have activists on campuses across the country,” she said. “We will continue to use the media to pressure college campuses to provide equal educational opportunities to all students.” Peterson believes that colleges, ever-shy of bad publicity, will continue to work with organizations like hers to keep themselves out of the headlines, and that even with the preponderance of evidence standard feasibly on the chopping block, educational institutions will continue to rely on the structures they’ve assembled to address their respective issues.
Attorney Brett Sokolow, a fixture in the debate about campus rape, doesn’t think the Trump administration could change much about how things work, even if they tried. “Changing a college is like trying to turn a cruise ship,” he says, but notes that there are plenty of ways for the administration to rearrange the deck chairs, so to speak. The administration could simply refuse to enforce the 2011 Dear Colleague Letter. “At most, they might return that decision to schools to choose what standard to use, in which case, very little will change.” Sokolow said.
The FIRE’s Harris said she’ll be “shocked” if the Trump administration went after a higher standard for those accused of campus sexual assault. “I think it would be wonderful if we could get some kind of clarification from OCR clarifying that students accused of serious wrongdoing have a right to due process,” she notes.
No matter what moves they make (or don’t), the incoming Trump administration will face a complicated set of issues teetering on the brink of disaster no matter what tinkering occurs. The current system is untenable, and advocates on both sides argue that it serves neither the victims nor the accused. Tomorrow, next week, next month there will be a new UVA, or a new Columbia, or a new Stanford, or a new Vanderbilt, whether or not the new presidential administration is ready.