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Colleges and universities have seen an increased and sustained focus on their handling of sexual assaults on their campuses. Recent Congresses and the Obama Administration launched numerous initiatives aimed at highlighting the issue, devising approaches to address it, and strengthening enforcement. Many states and advocacy groups have also launched initiatives in this area. Although the Trump Administration made significant changes to campus sexual assault policies, President Biden is planning to reverse some of those efforts.
 

Federal Requirements and Initiatives

Two federal laws address sexual violence at institutions of higher education. The first is the Clery Act, which addresses campus safety by requiring institutions of higher education to disclose campus crime statistics and security policies. The Clery Act was amended most recently by the Violence Against Women Reauthorization Act of 2013.  Final regulations implementing these changes went into effect on July 1, 2015.

The second federal law that addresses campus sexual assault is Title IX, which prohibits discrimination on the basis of sex in federally funded programs or activities. The Department of Education’s Office for Civil Rights aggressively pursued Title IX enforcement activities through the end of the Obama Administration. During this period, the Department issued guidance documents related to campus sexual assault in 2011, 2014, and 2015. 

In 2017, the Trump Administration began the process of developing new Title IX regulations related to campus sexual assault.  That year, the Department rescinded the Obama Administration's 2011 and 2014 campus sexual assault guidance and replaced it with new, interim guidance that remained in effect until the new regulations were implemented. The Department also modified its Title IX enforcement efforts with respect to campus sexual assault by shifting investigative focus to other types of discrimination claims and reducing the length and breadth of investigations.

On November 29, 2018, the Department issued proposed Title IX regulations on campus sexual assault. NAICU participated in a community-wide effort, convened by the American Council on Higher Education, to draft and submit a 33-page comment letter on the Title IX proposed rule.

The final Title IX regulations were published on May 19, 2020 and became effective on August 14, 2020. The regulations radically transform how colleges and universities handle sexual misconduct cases by imposing strict new procedural requirements that institutions must follow when addressing such complaints. Although some of these changes are designed to assure fairness for accused students, there are also concerns about the impact these new procedural requirements are likely to have on sexual assault survivors and educational institutions alike. The new rules also require supportive services for survivors of sexual assault.

To help provide a better, more comprehensive, understanding of the new Title IX regulations and their potential implications, NAICU has created a webpage containing Title IX resources. Those resources include:
 

• An Executive Summary that describes key aspects of the final rules 
• A Technical Summary that provides a more detailed analysis. 
• A webinar that gives an overview of the regulations and shares the presidential perspective.

Meanwhile, President Biden has launched an effort to roll back the Trump Administration’s Title IX regulations.  Specifically, the Biden Administration has directed the Department of Education to conduct a comprehensive review of the agency’s Title IX regulations, guidance, and related policies, particularly as they relate to campus sexual harassment and assault. The Department is conducting this review via a three-step process involving a public hearing, new guidance, and an eventual rewrite of the 2020 regulations.

To reverse the regulations, the Biden Administration must do so via notice-and-comment rulemaking, a process which is likely to take several years to accomplish. Although it is unclear precisely what modifications would be made to the regulations, new rules would likely differ in some respects from Obama-era guidance because of changes in how the courts have interpreted Title IX during the intervening years, particularly with respect to procedural protections for accused students.

Finally, it is important to note that Congress may take action on campus sexual assault. For example, bipartisan legislation has been introduced in recent congressional sessions.  Reauthorization of the Higher Education Act could also provide an opportunity to address the issue.