States Embrace Obama Administration’s Title IX Rules in the Face of Trump Changes

As the Department of Education starts the process of writing new regulations for campus sexual-misconduct investigations, some colleges have already promised to ignore the government’s interim guidance.

Some states have gone even further, enshrining elements of the Obama administration’s previous nonbinding guidance and setting up a possible showdown with the Trump administration.

Education Secretary Betsy DeVos* triggered widespread backlash from sexual assault activists by rescinding Obama administration “Dear Colleague” letters that enforced a low evidence standard and gave few procedural protections to accused students.

But without an administration friendly to their cause, advocacy groups such as Know Your IX and End Rape on Campus are moving to state legislatures to further their initiatives, building on progress they have already made in one-party blue states such as California, Illinois and New York.

Pioneer of ‘yes means yes’ plans to go even further

Know Your IX has a comprehensive “state playbook” outlining their desired policies for dealing with campus sexual assault. The organization’s website reads: “Know Your IX’s State Policy Playbook outlines key reforms that students, advocates, and state policymakers can pursue to support survivors on campus, keep students safe, and end gender-based violence in school.”

End Rape on Campus says that a “state-by-state strategy is a promising tactic” for advocates to undertake “in conjunction with federal policy advocacy” to change laws.

Its supported policies include “age-appropriate consent and healthy relationships education from elementary school to college” and ending statutes of limitation on sex crimes. The organization was co-founded by a student whose own alleged campus rape has been questioned in two recent investigations.

In 2014, California started requiring colleges and universities in the state to use the “preponderance of evidence” standard in sexual assault investigations or risk losing their state funding, just as the 2011 federal Dear Colleague letter had done with regard to federal funding.

The so-called “yes means yes” law also changed California’s definition of sexual consent to “affirmative,” meaning sex is considered nonconsensual if all parties don’t provide consent through words or clear nonverbal cues throughout their sexual encounter. Illinois also enforces the affirmative consent standard but not the preponderance evidence standard, according to E. Everett Bartlett, president of the due-process group Stop Abusive and Violent Environments.

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