During the Obama Administration, the Department of Education’s Office for Civil Rights warned colleges and universities that, if they did not take further measures to prevent and remedy sexual violence among students, they could lose their federal funding. In a “Dear Colleague” letter sent in 2011 to more than seven thousand schools, the O.C.R. provided guidance on how to avoid such a punishment. Although the letter was not legally binding, and contained few very clear instructions, the agency posted a shame list of schools that were under investigation for noncompliance with Title IX, the law, passed in 1972, that prohibits sex discrimination at federally funded institutions. At a gathering of college administrators at Dartmouth, in 2014, the assistant secretary for civil rights, Catherine Lhamon, said, “Do not think it’s an empty threat.”
Universities reacted with panicked overcompliance: in renewing their attention to the rights of alleged victims of sexual assault, many began to disregard the rights of accused students. In recent years, it has become commonplace to deny accused students access to the complaint, the evidence, the identities of witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses. At many schools, including Middlebury College and the University of Pennsylvania, investigators and adjudicators have been trained to “start by believing” the complainant rather than to start from a position of neutrality. According to K. C. Johnson, a professor at Brooklyn College and an expert on Title IX lawsuits, more than four hundred students accused of sexual misconduct since 2011 have sued their schools under federal or state laws—in many cases, for sex discrimination under Title IX. While many of the lawsuits are still ongoing, nearly half of the students who have sued have won favorable court rulings or have settled with the schools.
From the start, the Trump Administration seized on Title IX as an area in which to reverse the Obama Administration’s positions. Under Betsy DeVos, the Department of Education has rescinded more than twenty Obama-era policy guidelines on anti-discrimination laws, including ones that protected transgender students from discrimination and allowed them to use gender-segregated facilities of their choice. It has also cancelled policies that supported schools’ use of affirmative action, outlined disabled students’ rights, and attempted to curb racial disparities in elementary and secondary schools, based on research showing that minority students are punished for misconduct at higher rates than their behavior warrants. These revocations have rightly provoked concern that DeVos is turning her back on vulnerable students.