Judge lets DeVos’ controversial rule on campus sexual assault take effect

The U.S. Education Department’s controversial new regulation governing how schools and universities should respond to allegations of sexual assault and harassment went into effect on Friday after a federal judge rejected an effort to stop it.

The new directive covering the enforcement of Title IX, a U.S. law prohibiting sex discrimination at federally funded schools, replaces an Obama-era rule revoked in 2017 by Education Secretary Betsy DeVos. The old rule had been hailed by victims’ rights advocates for providing long-overdue protections for sexual assault survivors, but critics said it pushed schools to find students guilty.

The new rule expands the rights of the accused in part by creating a judicial-like process that gives the accused the rights to a live hearing with multiple panel members, and to cross-examine accusers, which was not previously allowed. It bars schools from allowing one person to both investigate and judge complaints. It also, among other changes, narrows the definition of sexual harassment.

While men’s rights advocates have hailed the new rule, women’s rights groups say the DeVos rule is too easy on the accused and will discourage sexual assault victims from coming forward with a complaint.

On Wednesday, U.S. District Judge Carl Nichols sided with the Education Department in a lawsuit filed by 17 states and the District of Columbia that sought to prevent the rule from taking effect.

The suit argued, among other things, that the new rule inappropriately narrowed the scope of sexual assault cases that schools could investigate and placed undue burdens on schools that could affect their ability to deal with the COVID-19 crisis.

“The court recognizes the obvious seriousness of the COVID-19 pandemic,” the judge wrote. “In fact, for these and other reasons, a later effective date might have been a preferable policy decision.” But he also said schools had long known the rule was coming.

Ms. DeVos, in a statement, said: “Today marks a new era in the storied history of Title IX in which the right to equal access to education required by law is truly protected for all students. Every student should know that their school will be held accountable for responding to incidents of sexual misconduct and that it must treat all students fairly.”

Emily Martin, vice president for education and workplace justice at the nonprofit National Women’s Law Center, said in a statement that the rule would put women in jeopardy and that critics would not drop the legal battle against the rule.

“We are confident that these dangerous rules will eventually be set aside — but schools can’t wait,” she said. “Schools must set a better standard for students by increasing protections for survivors of sexual harassment, instead of using this as an opportunity to risk student safety and dignity. As students head back to school during a health pandemic surrounded by uncertainty, schools can at least have students’ backs when it comes to sexual harassment and assault.”

It took the Education Department two years to finalize the rule and, as of Friday, put it into effect because public comment was solicited and a tsunami of responses — 124,196 in all — came in. Most of the attention around the Title IX rule has been about colleges and universities, but it also applies to elementary and secondary schools and can affect every school that accepts federal money, which is virtually all of them.