By John Banzhaf
President-Elect Donald Trump’s nominee to be Secretary of Education, Betsy DeVos, a conservative philanthropist very active in Republican circles, is likely to impact the current policy of pressuring colleges and universities to thoroughly investigate and vigorously prosecute claims of sexual assault (especially rape).
Although little is known about her views concerning this precise issue, she is a staunch Republican, and has views generally consistent with Donald Trump’s. Republicans and Trump are generally opposed to unnecessary intrusion by the federal government, excessive regulation, etc., and in favor of state rights and local control. Thus, it is quite likely that there will be some easing in this area as well as others.
One possibility would be for the Department of Education to completely reverse its former position that Title IX, which requires equality between the sexes on campus, especially regarding sports, requires colleges receiving federal aid to take action on every rape complaint, regardless of the gender involved.
Such a reversal would leave individual universities free to formulate whatever procedures each thinks would be the most appropriate to its unique situation; replacing what has been described as a one-size-fits-all policy currently imposed on all universities with threats of investigations, and even a possible cessation of all federal funding.
This would be unlikely to lead to a return of the practice all too typical five or more years ago, where so many colleges took no effective action, and tried to cover up allegations, so as to avoid harming their reputations. What institution, after all, wanted to become known as “Rape U.”
Today, there are too many pressure groups; campus staff positions based upon deterring, investigating, and adjudicating complaints of sexual assault; concerns by female students on campus and their parents, etc. to put the genie completely back into the bottle. But it is not too late to rein in a genie which, in the eyes of many, has now gone too far.
Another possibility is that the basic Title IX ruling would remain, but that the rules – in the form of guidance documents – would be trimmed to give individual campuses leeway to formulate their own policies. This would recognize, for example, that what might be appropriate on a very large and very liberal East Coast university might not be appropriate for a small conservative college.
Another possibility would be to formulate actual regulations using the legally-required notice and comment procedure. This would help to insure that whatever rules are adopted are consistent with the best scientific data and thinking on the topic – so-called best practices – rather than the predilections and perhaps even biases of a few bureaucrats in the agency.
This movement, like so many others in the past, in some ways resembles a pendulum. At the beginning it starts off way to one side – usually inaction and indifference.
Then public pressure, regulatory or other legal action, changes in attitude, etc. force the pendulum to swing well past the midpoint to an extreme on the other side.
Eventually, however, as the extreme pressure subsides, the pendulum can return to a more normal and reasonable equilibrium position somewhere between the two extremes.
Banzhaf is a Professor of Public Interest Law at George Washington University Law School.
