What's Next for Campus Sexual Assault Prevention?

March 14, 2017

College and university administrators expect the Trump administration to be far less active in enforcing Title IX than the previous administration. However, campus sexual violence remains a mission-critical issue that students, families, and advocates will continue to press, and institutions will need to continue taking proactive measures to address.

Reading Tea Leaves

For nearly six years, the Obama administration oversaw a broad campaign to address sexual assault on campus, releasing administrative guidance, publicizing enforcement actions, and enforcing new rules to change how institutions prevented and responded to  this critical issue.  

Although President Trump has said relatively little about the issue of campus sexual assault, his administration has openly committed to reducing federal regulatory burdens. Jerry Falwell, Jr. has announced that he will lead a federal task force on reforming higher education policy. According to a recent Reuters article, Mr. Falwell's task force may focus in part on cutting federal rules on investigating and reporting sexual assault under Title IX.

More recently, on Feb. 22, the Trump administration issued a new "Dear Colleague Letter" (DCL) withdrawing the May 2016 guidance on the civil rights of transgender students. Although the letter was fairly succinct, it demonstrates the ease with which the Trump administration can rescind the earlier sub-regulatory guidance of the Obama administration.

The February DCL criticizes the Obama administration for advancing the changes put forth in the earlier transgender DCL without a formal rulemaking process. Opponents of other Obama-era guidance on campus sexual assault have raised similar concerns in litigation challenging OCR enforcement of Title IX. Through this line of argument, the Trump administration appears to be indicating that it will avoid using similar sub-regulatory guidance to advance significant policy objectives. 

The era of campus sexual assault as a compliance issue may be drawing to a close.

Growth in Awareness and Expectations 

Although the Trump administration will likely abandon the DCLs of the Obama administration, sexual assault remains an urgent challenge for colleges and universities. Institutions must continue addressing campus sexual assault to meet the expectations of students, parents, and advocates—and to ensure continued focus on their academic mission.

The net impact of the Obama administration’s campaign against campus sexual assault has been a dramatic increase in public awareness. Today, students and their parents increasingly know what constitutes sexual assault, how to report it, and what to expect from institutions in response. When it comes to prevention and response, students and parents have higher expectations than ever before, and institutions face significant reputational risk for any missteps. 

If sexual assault prevention advocates have lost a friendly White House, they will increasingly turn to litigation as a form of advocacy. In a recent interview with The Chronicle of Higher Education, Alexandra Brodsky, co-founder of Know Your IX and a fellow at the National Women's Law Center (NWLC), indicated that the NWLC will turn to the courts if OCR pulls back on enforcement: "That's why we're working very hard...to build our network of attorneys who can take on these cases and make sure that the attorneys have the resources they need." Going forward, it is likely that victim advocates will focus more energy on the courts, leading to more claims against institutions.

Sexual Assault Prevention is a Critical Investment

Over the past several years, institutions have taken significant steps to revise their policies and practices relating to sexual assault prevention and response. Investment in prevention programs has grown, with programs targeting not just incoming undergraduates but also key populations, including international students, athletes, and Greek communities, as well as graduate and professional students. Bystander intervention training programs are increasingly common, as are climate surveys and extensive training for faculty and staff.

Many campus administrators and leaders see these efforts as essential to the educational mission of their institutions. A campus climate free from sexual assault is required for students to learn, teachers to teach, and researchers to research. Because of the significant harm involved in any mishandled incident of sexual assault for all parties involved, as well as the attendant reputational risks, institutions must not reverse the significant efforts of the past six years. 

In the Trump era, preventing and responding to sexual assault on campus will continue to be an urgent challenge at our colleges and universities. But how to address this challenge without clear compliance guidance will be a critical question.