Dog Whistles and Beachheads: The Trump Administration, Sexual Violence, and Student Discipline in Education

On November 29, 2018, the Trump Administration’s Department of Education (“ED”), published a Notice of Proposed Rulemaking (“NPRM”) which proposed expansive changes to ED’s regulations under Title IX of the Educational Amendments of 1972 (“Title IX”). These changes focus on Title IX’s prohibition of sexual harassment, which includes sexual violence as a severe form of sexual harassment. The NPRM lifts the historical expectation that schools will use a preponderance of the evidence standard of proof in their internal sexual harassment investigations. Instead, the NPRM proposes a rule that would push schools to adopt a clear and convincing (“C&C”) evidence standard for sexual harassment and other forms of discriminatory harassment. This article maps the ways in which the NPRM’s attempt to replace the civil rights-based preponderance standard with the quasi-criminal C&C evidence standard seeks to establish a beachhead in a larger war against civil rights and uses a “due process” dog whistle as a key weapon in the establishment of that beachhead. If successful, this broad attack on civil rights will undermine the rights of not only sexual harassment victims, but all discriminatory harassment victims, especially women students of color and other intersectional populations who are disproportionately vulnerable to harassment. ED’s encouragement to adopt an inappropriate standard for sexual harassment opens the door for schools to do the same for other forms of discriminatory harassment, resulting in fewer protections from all discriminatory harassment, not just sexual harassment. In addition, although ED claims to have issued the NPRM to enhance accused students of color’s due process rights and to promote racial justice, the NPRM actually is a part of a larger campaign. This campaign includes efforts by a number of coordinated groups to undermine the due process rights of accused students who are overwhelmingly African American. This dog whistle seeks to convince the public that dismantling Title IX protections for sexual harassment victims will better protect students of color’s due process rights, while actually tapping into potential stereotypes that can be summed up as “sexual harassment victims lie.” In doing so, the dog whistle enables the Trump/DeVos ED both to attack and undermine civil rights for harassment survivors, thus establishing an anti-civil rights beachhead, and to distract attention from its enabling of discrminatory school discipline of students of color, especially Black students. An alternative to co-signing this dog whistle and enabling the Trump Administration’s establishment of this beachhead can be found in the potential and actual use of the “commenting power” to defend Title IX and its intended beneficiaries (i.e., sexual harassment victims)— as well as the classes protected by civil rights laws that can be attacked via an anti-Title IX beachhead. The results of a previous comment call, asking for public “input on regulations that may be appropriate for repeal, replacement, or modification,” showed high levels of democratic support for Title IX, as well as the undemocratic nature of agency actions such as the NPRM. The resistance strategy of using the commenting power has important implications for the NPRM as well as the Administrative Procedure Act, which is fundamentally concerned with reining in anti-democratic impulses by non-elected officials.