DeVos’ change would alter college sex abuse policies

Education WASHINGTON — Secretary Betsy DeVos is set to release a sweeping overhaul of how colleges and universities must handle allegations of sexual assault and harassment, giving new rights to the accused, including the ability to cross-examine their accusers, people familiar with the matter said.

The proposal is set for release before Thanksgiving, possibly this week, and replaces less formal guidance issued by the Obama administration in 2011. The new rules would reduce liability for universities, tighten the definition of sexual harassment and allow schools to use a higher standard in evaluating claims of sexual harassment and assault.

The rules stem from a 1972 law known as Title IX that bars sex discrimination at schools that receive federal funding. Most of the attention is on higher education, but the rules also apply to elementary and secondary schools. Once published in the Federal Register, the proposal will be open for public comment before being finalized.

The rules come after years of rising pressure on universities to better respond to allegations of sexual assault and other misconduct, and the proposal is likely to anger those who fear victim claims will be ignored or minimized. But the new direction has been welcomed by men’s rights groups, who say the Obama guidelines were weighted in favor of the accusers, and by some university administrators who found the Obama version overly prescriptive and confusing.

The proposed rule will dodge a related controversial matter regarding the rights of transgender students. The Department of Health and Human Services had urged the Education Department to include a provision defining gender as someone’s biological sex at birth. The DeVos proposal does not include that idea.

But several people said it is possible the Education Department will later issue a letter or fact sheet that asserts sex discrimination does not include complaints related to gender identity.

People with direct knowledge of the rules and others briefed on them spoke on the condition of anonymity because they were not authorized to publicly discuss the proposal. The department declined comment.

The most significant change would guarantee the accused the right to cross-examine their accusers, though it would have to be conducted by advisers or attorneys for the people involved, rather than by the person accused of misconduct. If requested, the parties could be in separate rooms during the cross-examination, an administration official said. They said this was done to bolster the due-process rights of the accused while assuring that victims are not directly confronted by their assailants.

The Obama guidelines had strongly discouraged use of direct cross-examination. The earlier DeVos draft allowed cross-examination but did not require schools to offer it as an option.

Recent court decisions requiring public universities to allow the accused the right to cross-examination when credibility is an issue figured in the administration’s reasoning, two people said.

Some White House officials urged going further to include a mandatory cross-examination provision, two people familiar with internal discussions said. They said others in the administration argued that mandatory questioning was ill-advised, potentially traumatic for victims and not required in court hearings.

The proposal will include language barring questioning about an accuser’s sexual history, one administration official said.

Jess Davidson, executive director of the advocacy group End Rape on Campus, said she made the case to the White House against allowing the parties to directly cross-examine each other, decrying it as “an extraordinarily cruel process” that would discourage victims from reporting assaults.

“Most survivors would be unwilling to go through a process that allows the person who sexually assaulted them to cross-examine them, and rightfully so,” she said.

Others argue that colleges failed to protect the rights of the accused under the Obama guidelines.

For instance, many schools used a single investigator to gather evidence and decide the case, without an opportunity for the accused to confront their accusers, said Robert Shibley, executive director of the Foundation for Individual Rights in Education, which supports more robust due-process procedures.

In another change, the proposal will allow both sides to appeal an adverse ruling, and not just the accused.