Donald Trump and the Future of Title IX: The Campus Could Become a More Dangerous Place

New York, NY USA - July 16, 2016: Donald Trump speaks during introduction Governor Mike Pence as running for vice president a
New York, NY USA - July 16, 2016: Donald Trump speaks during introduction Governor Mike Pence as running for vice president at Hilton hotel Midtown Manhattan

In an article titled "Trump, Clinton and Sex Assault" (10-11-2016), Inside Higher Ed has outlined the positions of the two campaigns on the issue of campus sexual terror. Reporter Jake New noted that their approaches "would differ" and factually reported what is known.

It is known that Hillary Clinton "has spoken of the issue repeatedly and highlighted it on her campaign website" and that Donald Trump has "not yet described what he would do."

Trump has not prioritized the matter, but as described by Inside Higher Ed, "the Republican Party platform calls for removing the responsibility of colleges to investigate allegations of sex assault."

The history involves a core dispute about how Federal Title IX regulations are implemented and administered.

In 2011, the Obama Administration issued "guidance" and established expectations about how universities should interpret the law. Through its Office of Civil Rights, the Department of Education provided standard and detailed policy guidelines that were hailed at the time as a "call to action on sexual harassment."

The Republican pushback has been focused on the rights of the accused, not the victims or the students at risk.

Pushback from academia has been focused on liability and responsibility (academic institutions are generally not in favor of institutional liability and responsibility). The pushback also involves themes of "male privilege." Resistance has most prominently been expressed in the ivory towers of the elite.

The leverage in this case involves Federal funds for academia, the Department of Education's budget, legal action in the courts, and political action on the quad.

The fulcrum for the argument is the "burden of proof" - the test that is used to determine whether a complaint is sustained or dismissed.

2011 instruction from Education was that in the adjudication of sexual assault and harassment claims, the civil law "preponderance of evidence" standard was to be applied.

It took until November 2014 until the Ivy League was in full compliance, with Princeton being the last to give up the fight to retain a higher, "clear and convincing" evidence standard.

The "preponderance of evidence" rule considers whether the accusation is more probably true than not, or if most of the evidence (greater than 50 percent) points in one direction. The "clear and convincing standard" is a higher bar for finding fault, but not as protective of the defendant's rights as the "beyond a reasonable doubt" requirement of the criminal law.

The burden of proof applies when a matter proceeds to an administrative hearing, following investigation. On investigation, the standard is lower. A university is obligated to pursue a judgment when an investigation yields a "reasonable suspicion" or "probable cause" to believe that a rights violation has occurred. That is the same as in the criminal law - probable cause is enough for a prosecution to continue to trial or negotiation.

What the Republican platform proposes is to take the matter out of the hands of the institutions and make the criminal courts the only available recourse in cases of sexual harassment or sexual assault.

Proponents of this position (quoted by Inside Higher Ed) say they are trying to make certain that "Title IX doesn't continue to silence speech and establish kangaroo courts."

What they are demanding, and what Trump has signed up for, is an effort to do nothing less than make campus disciplinary actions dependent on proof of a crime, beyond a reasonable doubt, following a law enforcement investigation.

This is, quite simply, a perversion of the due process concept -- arguing that a campus disciplinary action should be treated as equivalent and conform to the demands of a criminal prosecution.

In the former, the consequence is an educational opportunity squandered and a work assignment in the family basement. In the latter, what is at risk is a deprivation of life and liberty. It is on an entirely different plane. Accused on campus, you have a right to "fair treatment," not the due process afforded to those we put behind bars.

On campus, as in the criminal justice system, the accused has the option of conceding and withdrawing, and escaping with some measure of dignity. A student who faces discipline or expulsion can transfer to a community college. An accused professor can "retire" and still become emeritus. A dean or a provost can usually retreat to the classroom, join the private sector, or pick up where they left off in some distant, swampland university.

The exposure to consequences is nothing at all like in a court of criminal law. Attending Harvard is a privilege, not a right.

The campus will in fact become a more dangerous place if a Trump administration decides to defund or defang the Department of Education.

Already hampered in their enforcement efforts by a backlog of complaints, a Trump administration would likely strip Education of its moral authority, while promoting a revisionist code of ethics.

The ethical principles espoused by the Trump campaign include the idea that misogynistic speech can be dismissed as "entertainment," that celebrity confers entitlement ("when you're a star they let you do it. You can do anything"), and that having and sharing sexual assault fantasies is a perversion of no consequence if confined to the "locker room" or the bus.

Moral guidance of this type would be expected only from someone who thinks that sneaking into little girls dressing rooms is "the funniest" thing.

Guided by Trump-like ethical standards, or with tolerance for such excuses, institutions would have little reason to consider sexual terror a concern of any sort.

A college campus should be a sacred place, a sanctuary for scholars and students to think, learn and to grow. It is a more dangerous place when it harbors deviant fantasies and allows impulses to go "unshackled."