The Future of Sexual Harassment Policies at U.S. Colleges: From Repeal of the 2011 DOE-OCR Guidelines to Launch of the #MeToo Movement on Social Media

Abstract

On September 22, 2017, the U.S. Department of Education’s Office for Civil Rights (“DOE-OCR”), under the leadership of U.S. President Donald Trump, repealed the previous administration’s sexual harassment prevention guidelines that had required colleges to appoint a Title IX compliance officer and prosecute sexual harassment claims under a “preponderance of the evidence” standard (the “2011 Guidelines”). Although some college administrators have praised the DOE-OCR’s efforts to overturn the 2011 Guidelines, others have described the Trump administration’s repeal as “a disgrace and a disservice to everyone who has worked to address sexual violence.” Opponents of the repeal, in particular, have pointed to U.S. President Donald Trump’s own history of alleged sexual harassment and the burgeoning #MeToo social media campaign as signs that American institutions, including its colleges, need to do far more to help eradicate sexual harassment. This article argues that, even though the DOE-OCR has repealed its 2011 sexual harassment guidelines, colleges–in light of the #MeToo movement–need to maintain the gravamen of their safeguards against sexual harassment. Part I of this Article introduces Title IX of the Education Amendments Act of 1972 and the subsequent DOE-OCR interpretive guidelines. Part II discusses recent efforts by society to expose the sustained prevalence of sexual harassment, including through the #MeToo movement. Part III discusses three prevailing criticisms of the DOE-OCR’s 2011 Title IX Guidelines. Finally, Part IV suggests best practices for how colleges should respond to the DOE-OCR’s repeal of its 2011 Guidelines, especially in light of the #MeToo movement.

Keywords: Title IX, Sexual Harassment, Department of Education, Education, Higher Education, Education Law, Higher Education Law, Civil Rights, Donald Trump, #MeToo, Me Too, Sexual Violence, College Life, College Students, Constitutional Law, Harvey Weinstein, American Colleges