HIGHER EDUCATION BUBBLE UPDATE: In Title IX Industry, Chaos and Confusion.

Every constituency and interest group involved with the increasingly complex and expensive process of campus sexual assault adjudication—administrators, consultants, victim advocates, due process hawks, and defense attorneys—is waiting with bated breath to see how the incoming administration will navigate the explosive terrain of Title IX enforcement. Inside Higher Education highlights the uncertainty swirling around the industry as to whether the administration will reverse the Obama administration’s aggressive measures reducing due process for students accused of sexual assault—and if so, what kind of effect that will have on the ground. . . .

There is no way to know exactly what actions the administration will take in this area, especially because a new head of the Office for Civil Rights in Education (the agency responsible for promulgating Title IX regulations) has yet to be appointed. It seems reasonable to expect that some of the Obama-era guidance will be rolled back, although an administration run by someone who has made comments that would likely be enough to convict him in a campus proceeding might be cognizant of the political optics of acting too aggressively in this area.

Then there is the possibility that no matter what action the Trump administration takes or doesn’t take on Title IX, near-universal anti-Trump horror on college campuses will make the climate more favorable to sexual assault activists. Much of academia has sworn to resist the Trump administration; this might entail a further leftward lurch on key culture war questions. Then again, if schools go too far in reducing due process, it’s not inconceivable that an enterprising right-leaning (or civil libertarian) head of OCR could take campuses to task for violating Title IX by discriminating against male students.

As with much else about the incoming Trump administration, the unsettled area of campus sexual misconduct law is highlighting the perils of government-by-executive-regulation (something that the New Yorker’s Jeannie Suk has discussed with respect to the transgender bathroom issue). To avoid further creative partisan rule-making on such an important and charged question, Congress would be well-advised to pass real legislation clarifying what Title IX actually requires, the mandate of various agencies charged with enforcing it, and its relationship to federal funding in higher education.

You could do this by regulation, but yeah. On the other hand, when you see the huge edifice of “interpretation” and “guidance” that the bureaucracy has managed to build based on Title IX’s single sentence providing that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” you have to wonder.

For more on how that happened, everyone who’s interested should read Robert Shibley’s Twisting Title IX.