Reining In the Excesses of Title IX

What happens when a morally reprehensible administration puts forth morally just reforms? We are about to find out. A New York Times report on Wednesday outlined the Trump administration’s proposed revisions of rules governing how campuses deal with sexual misconduct allegations (the official release is expected by October). A year ago, Department of Education Secretary Betsy DeVos declared that the rules and procedures put in place by the Obama administration on this volatile subject had created a “failed system” that brought justice neither to accuser or accused. She promised to change that.

Now we have a snapshot of her administrative proposals. These would rein in some of the excesses of Title IX—the federal law that prohibits sex discrimination in education—that took off in 2011 when President Obama made the elimination of campus sexual assault a key domestic policy. Worthy as this was, it resulted in a radical inflation of the definition of sexual misconduct on campus to potentially include virtually any sexual encounter—from behavior that could meet the criminal definition of rape, to jokes and unwanted flirtation. And schools, desperate to avoid displeasing federal Department of Education investigators, established Title IX procedures that flouted the rights of the accused.

Some of the proposals are the beginning of a necessary correction. Others are almost guaranteed not to achieve their intended goals; some could even backfire. And at least one provision may weaken a significant protection for complainants.