Can Trump Undo Obama's Title IX Tyranny?

If the spirit of the Obama administration endures anywhere, it will be in the form of a policy directive from a small office in the Department of Education. The prime example of fiercely ideological federal overreach of the Obama years, the 2011 "Dear Colleague" letter from the department's Office of the Civil Rights reinterpreted (or distorted, depending whom you ask) Title IX of the Nixon-era Higher Education Act —and made a mess of campus sexual assault policies. When it comes to straightening it all out, there may be no Trumpian overhaul sufficient to undo existing campus practices—short of a federal intervention equal and opposite the Obama administration's.

The 2011 guidance forced colleges and universities to investigate and adjudicate claims of sexual discrimination, from alleged rapes to offensive language, in on-campus tribunals according to a sub-legal preponderance of evidence standard. Education's OCR required colleges and universities to play by the government's rules or else give up government money and face the fire of a federal shame campaign. Schools complied, under financial and reputational duress, and many went harmfully overboard, following the administration's lead.

Too often students accused of a violation will not receive notice of their charge, let alone the opportunity to prepare a defense, until a disciplinary decision has been meted out by administrators acting as Title IX coordinators, who receive minimal mandatory training.

In April, Inside Higher Ed reported increasingly many accused students had been winning cases to overturn Title IX disciplinary rulings, on the grounds that they lack any semblance of a balanced process. One case at Brandeis University, a he-said-he-said between ex-boyfriends, failed sufficient notice and due process according to federal judge F. Dennis Saylor, who found, "Brandeis appears to have substantially impaired, if not eliminated, an accused student's right to a fair and impartial process."

In October, OCR itself determined that Delaware's Wesley College had denied an accused student his equal rights. (Under OCR's rules for Title IX, whatever right the complainant receives, such as counsel or calling witnesses, the accused should also have.) OCR, while well-intentioned, created a monster—and quickly lost control.