Trump’s Proposed Sexual Misconduct Policy for Colleges


Photo from The Daily Utah Chronicle.

Haley Hartner, News Editor

This article was written using information from articles published at The Atlantic, NPR, and Forbes.

The New York Times released a draft in late August of the Trump administration’s proposed guidelines regarding sexual misconduct on college campuses, reducing institution accountability.

Colleges and universities will now require “clear and convincing evidence” to prove sexual assault, will be able to hold investigations for an unrestricted amount of time, and will only hear pleas from the accused. The protection of alleged victims will also be completely at the school’s discretion. Further, colleges will be legally absolved from investigating incidents not reported to a school official with the correct jurisdiction, and incidents which took place off campus. Institution accountability will exclude fraternities, off-campus housing, and surrounding establishments.

The new guidelines redefine the term “sexual harassment” to mean “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” This greatly contrasts the prior definition, which defined the term as “unwelcome conduct of a sexual nature,” including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

Jennifer Reisch, legal director of Equal Rights Advocates, states “the message that is sent is that the administration believes that women who report sexual harassment and violence are liars,” and indicates that “you come forward at your peril.”

This policy is spearheaded by Education Secretary, Betsy DeVos, who presented the new guidelines last fall. She does this after claiming that the original sexual misconduct policy, set in place by the Obama administration, “forced schools to violate the due process of the rights of the accused.”

The previous administration encompassed the “preponderance of the evidence” standard, making judicial decisions in this regard predominantly based on the probability of the truth and accuracy of the evidence, rather than the amount of it. This upheld more than a 50% probability of guilt. The Obama administration also advocated for the protection of the accuser, frequently relying on “no contact” orders and deeming mediation as “inappropriate.”

These are now considered to be unfair by the Trump administration.

Justin Dillon, defense attorney for those accused of sexual assault, asserted his support for DeVos’ proposed guidelines, calling it a “good tonal shift, and a good signal to universities that the era of ignoring due process is over.” In his statement, he references one of his former clients who was forbidden from his university’s campus while a sexual assault allegation against him was being investigated. He uses this incident to portray the struggle to uphold the rights of the accused, specifically under the Obama administration’s policy. This decision, however, was eventually overturned on the grounds that the order was “interfering with his education.”

Many institutions are deciding to wait and see whether DeVos’ tentative guidelines will be legalized after proposing a more permanent policy this fall, though a definitive action may not take place until early next year.