In the weeks before president-elect Donald Trump takes office, Shanlon Wu, a former federal sex crimes prosecutor at the Department of Justice who is now in private practice with a focus on student defense, considers his potential impact on college campuses. — Susan Svrluga
A radically different legal landscape for campus sexual assaults likely awaits colleges and their students after the winter holidays.
The outgoing Obama administration devoted considerable resources to raising awareness about campus sexual assaults and forcing compliance with Department of Education guidelines by opening up more than 200 investigations of schools for possible violations of Title IX – the federal law that prohibits discrimination in education on the basis of gender – over the schools’ handling of campus sexual assaults.
But the incoming Trump administration is likely to rein in what many see as overly aggressive enforcement actions that have produced unfair results for accused students.
Making it harder to prove campus sexual assaults by raising the burden of proof is likely to be first among the major changes coming.
Currently, schools must apply the lowest possible burden of proof used in civil cases, the “preponderance of evidence” standard, in determining whether an accused student will be found responsible (“guilty”) of sexual assault.
Under this standard, guilt may be determined by the school if the evidence merely indicates that it is “more likely than not” that the sexual assault occurred. Advocates for accused students have long argued that the standard is too lenient and results in too many accused students wrongly being found responsible.
This argument is likely to gain traction with a more conservative Education Department, which is likely to increase the burden of proof to a more stringent “clear and convincing standard” either through revising its recommendations or clarifying that its previous recommendations were only guidance, lacking the force of law.
The latter approach would also be in keeping with a more conservative regulatory approach disfavoring end runs around formal legislation promulgated by Congress through unilateral Executive Branch actions. This approach is also in keeping with a general approach of “de-federalizing” the campus sexual assault issue.
Law enforcement views that campus sexual assaults are crimes, not student discipline matters, also will be afforded greater weight. Investigations may be shifted back toward the police and away from university administrators and panels of student judges.
Such a shift makes it more likely that campus sexual assault prevention and investigation training will need to be conducted by professionals with actual experience in conducting criminal sexual assault investigations.
Such substantive training would differ greatly from the current regulatory compliance training given to campus administrators and Title IX investigators in how to comply with federal regulations and oversight.
Affording law enforcement greater deference also means giving more deference to actual criminal justice system cases and their outcomes.
Thus, schools may be forced to give formal weight to the outcomes of criminal investigations and criminal cases instead of the current insistence on ignoring any non-campus proceedings – a policy that can result in an accused student being found innocent in court, but guilty in school.
Seeing campus sexual assaults more as a law enforcement and criminal justice issue also makes it more likely that lawyers will be allowed to play a greater role in campus investigations.
Currently, colleges and universities limit the roles of lawyers to silent advisers who may not speak during their client’s cases. The schools justify such restrictions by claiming that campus investigations conducted by a school are not “legal proceedings,” despite the life-changing effect these investigations have upon both the accused and accusing students.
The Trump administration likely will find such a legal fiction unconvincing and allow lawyers to act as lawyers rather than muzzled observers.
All of these changes reflect a more conservative view that sexual assaults on campus are no different than sexual assaults occurring anywhere else.
Whether such a view helps or hurts the prevention and investigation of campus sexual assaults remains to be seen.