What’s going on with campus sexual assault rules in the US?

The US Education Department has released proposed new regulations that would reverse a swathe of Trump-era policies - restoring a “pro-victim” approach to allegations of sexual assault on campus championed by the Obama administration.

Jim is an Associate Editor at Wonkhe

The administration says that the proposed regulations will advance educational equity and opportunity for women and girls across the country to ensure that:

…every student in America, from kindergarten through a doctorate degree, can achieve her dreams.

It’s been quite a rollercoaster this. “Title IX” is an American federal civil rights law that was passed as part of the Education Amendments of 1972.

It says:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

It was originally used to ensure equal access for women to the sports programs of universities. But following sustained public pressure, in 2011 Obama’s US Department of Education’s Office for Civil Rights issued what is called a “Dear Colleague” letter that offered a fresh and significant interpretation of Title IX:

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.”

That letter said that it is the responsibility of institutions of higher education “to take immediate and effective steps to end sexual harassment and sexual violence” and illustrated multiple examples of Title IX requirements.

It obligated universities to disclose all of the options and resources available to students who experience sexual misconduct, gave all students the right to due process, regulated the quality of investigations and required the standard of evidence in cases to be vased on a “preponderance of evidence” (what we could call a “balance of probabilities”) standard — meaning panels don’t need to be convinced that an incident occurred, only that it was more likely than not. There were also broad requirements on reporting designed to ensure that staff across a university that might become aware of harassment or misconduct report it.

Following complaints from accused students, under the Trump administration, Education Secretary Betsy De Vos issued a new “Dear Colleague” letter watering down various aspects of the expectations – for example confining the responsibility to address allegations to conduct on campus, and removing protection for transgender students’ rights under Title IX.

Now Biden’s Education Secretary Miguel Cardona has tightened them back up again, expanding the definition of sexual harassment to “all forms of sex-based harassment, including unwelcome sex-based conduct that creates a hostile environment by denying or limiting a person’s ability to participate in or benefit from a school’s education program or activity”, and adding a clutch of new requirements:

  • Enshrining protections for sexual orientation and (controversially with some) gender identity, as well as “sex stereotypes, sex characteristics, [and] pregnancy or related conditions”
  • No longer require live hearings and cross examination in investigations;
  • Clarifying the protections that students and staff have from retaliation by their institution;
  • Requiring universities to confront off-campus conduct that “creates or contributes to a hostile environment”
  • Requiring some staff members to notify a university’s Title IX office of possible sex discrimination – a return to broader mandatory reporting requirements.

In England right now, the Office for Students (OfS) is reviewing the effectiveness of its currently voluntary statement of expectations on harassment and sexual misconudct, with ministers keen that the regulator finds a way to give the statement teeth over issues like NDAs. As it stands we’ve not seen the kind of Democrat/Pro Victim, Republican/Pro Accused split in our politics – but that surely is coming to our culture wars in the future.

Quite why OfS’ statement is so vague, and yet the US expectations manage to be so helpfully detailed, is a whole different question. What are the justifications for universities handling sexual assault allegations differently – market competition?!

2 responses to “What’s going on with campus sexual assault rules in the US?

  1. Even before the Trump ‘adjustments’ to Title IX ‘guidance’ US Us were losing court challenges by ‘accused’ students on the basis that the (as you put it) a ‘pro-victim’ (accuser) approach often involved a disturbing lack of proper due process, either by way of flawed investigations or by way of disciplinary hearings that failed to meet the basic requirements of natural justice for the accused (or both).

    The latest US ‘guidance’ will presumably see even more court challenges and possibly again ones that find in favour of the accused.

    UK Us and those bodies that provide guidance to them (the OIA, the OfS, the UUK) need to think hard before adopting the (again, as you put it) ‘Democrats/Pro-Victim’ approach to this legal minefield of campus sexual misconduct.

    That said, all UK Us should, of course, operate broadly the same (robust and fair) non-academic disciplinary policies (using expert investigators and legally qualified panel chairs, and by all means using a civil standard of proof) – I think that is what your last sentence means, as opposed to UK Us mimicking US Us?

  2. The justice system is so entirely inappropriate, inadequate and flawed when dealing with sexual violence that universities have a great opportunity to provide a better alternative way of tackling SGBV. It’s no surprise that the legal system that exacerbates rape-culture, trauma and gender discrimination would be overturning outcomes from universities, and putting the balance of power back into the hands of the powerful.
    Universities need to find a way to push past the insufficient approach taken by the justice system. Yes, due process is required – it needs to be a transformational process that enables perpetrators to recognise and take accountability for the harm caused, rather than the current adversarial process which only results in defensiveness and worse attitudes and behaviours. My hope is that universities can resist the constant bullying from the state and use their power to tackle sexual violence! (I can live in my dream world if I want…)

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