BlogTrump’s Dismantling of the Department of Education Threatens the Rights of Survivors of Campus Sexual Assault and Harassment

Our Associate Katie McKay shares her thoughts on what Trump’s dismantling of the Department of Education means for survivors of sexual violence and harassment on school campuses across the country. 

Survivors of sexual violence and harassment on campus face numerous hurdles, including a less-than-perfect response from their own institutions.  When an institution fails to protect its students, these survivors have a remedy available under Title IX to enforce their rights.  Already weakened by recent Supreme Court jurisprudence, that remedy is now more imperiled than ever. 

This week, on Thursday, President Donald Trump signed an executive order to dismantle the Department of Education.  Though without precedent, this move was not without warning. Trump has signaled hostility towards the Department of Education—and the federal agencies more broadly—for years, intensifying his campaign against the agency considerably since taking office in January.  

The Department of Education serves many functions, including but not limited to administering federal financial aid, distributing and monitoring federal funds to the states, and overseeing research and data collection on education to disseminate information to the public and make recommendations to lawmakers.  However, administration and policy are not the Department’s only functions.  

The Department of Education also houses the Office for Civil Rights (OCR), which enforces federal civil rights laws in schools.  OCR’s administrative process provides an alternative remedy to filing a lawsuit in civil court for students who believe their civil rights have been violated.  When a student files a report with OCR, the agency will investigate and make a determination as to the institution’s responsibility and issue any necessary sanctions.  OCR also offers voluntary mediation to students and institutions to resolve their claims at an earlier stage.  

OCR serves as a vital wing of the federal civil rights enforcement apparatus.  OCR handles complaints of discrimination on the grounds of sex, race and national origin, age, and disability.  One of the many statutes it enforces is Title IX, the federal statute granting students protection against sex-based discrimination in the educational context and ensuring equal access to schools’ educational programs regardless of a student’s sex.  

Perhaps best known for its impact on historical discrepancies in funding and opportunity in women’s sports, especially as more colleges and universities ushered in coeducation by admitting women to previously all-male institutions, Title IX has grown considerably as a remedy to cover a wide variety of acts and omissions that create an unequal learning environment for students on the basis of sex.  

Chief among these innovations is the use of Title IX as a remedy for schools’ failures to address student complaints of sexual assault and harassment.  In 2011, President Barack Obama issued a series of Dear Colleague letters clarifying that schools have a responsibility to address sexual assault and harassment as a form of sex discrimination under Title IX, drawing from case law in the employment context finding the same under the comparable civil rights statute Title VII.   

Since then, OCR has become an important pathway for survivors to proceed against schools who have failed to uphold their civil rights after they experienced and reported sexual harassment or assault on campus.  

Title IX, unlike some other federal civil rights statutes, does not require that survivors exhaust their administrative remedies prior to filing a lawsuit to enforce their rights.  Instead, a survivor may pursue a civil lawsuit, an OCR complaint, or both.  However, many choose to begin with OCR anyway, because this process is less formal, less expensive, and less labor-intensive.  

Complainants in the OCR process do not need to hire counsel, and OCR’s investigation and voluntary mediation are offered to the student at no cost.  Whereas, in a civil lawsuit, it is generally necessary to hire an experienced Title IX attorney, and legal fees can quickly add up.  Thus, OCR provides a middle ground for students whose rights have been violated but who may or may not have the resources or desire to mount a full legal case.  

OCR is not a perfect remedy, of course.  The office already faced a significant backlog.  In my practice, we have survivors whose cases have been open since Barack Obama was in office.  Throughout the years, our clients have seen multiple administrations change over and have felt the effects of that transfer of power and subsequent change in priorities on their case.   

Additionally, recent decisions in the Supreme Court already have dramatically altered the financial picture for survivors—and their advocates—who are considering bringing civil lawsuits. In 2022, the U.S. Supreme Court issued its decision in Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022), which held that so-called “emotional damages” were no longer available under Title IX.   

Prior to the Cummings decision, survivors could recover considerable amounts to properly compensate for their injuries.  In most sexual harassment and assault cases, emotional damages are the primary form of injury sustained.  Cummings left these survivors without adequate recourse and changed the calculus for them and for their advocates as to whether a federal civil lawsuit was still worth the massive investment of time and labor. 

If the Department of Education is dismantled, then OCR will disappear along with it. And with OCR goes a vital alternative pathway for survivors seeking to enforce their civil rights after enduring horrific and dehumanizing forms of gender-based violence and harassment on campus.  

Survivors and their advocates will have to think creatively to forge new pathways to enforce these civil rights.  Some state and local laws, for example, provide additional protection beyond what Title IX can provide.  Going forward, advocates will have to ask themselves if Title IX remains the best approach to fight for their clients.