New rules give more rights to accused students
WASHINGTON — Education Secretary Betsy DeVos on Wednesday issued final rules for how public and private schools and colleges must address allegations of sexual misconduct, locking in protections for accused students and faculty but tempering earlier proposals that critics said would harm victims of assault and harassment.
The rules preserve DeVos’s broad goals in overhauling Title IX, the 48yearold federal law that prohibits sex discrimination in programs that receive federal funding, by infusing legal standards in disciplinary proceedings that have been left largely to schools to navigate.
The new regulations narrow the definition of sexual harassment and require colleges to hold live hearings during which student victims and perpetrators can be crossexamined to challenge their credibility. The rules also limit the complaints that schools are obligated to investigate to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action.
Schools will also be responsible for investigating only episodes said to have occurred within their programs and activities. And they will have the flexibility to choose which evidentiary standard to use to find students responsible for misconduct — “preponderance of evidence” or “clear and convincing evidence.”
To find a school legally culpable for mishandling allegations, they would have to be proven “deliberately indifferent” in carrying out mandates to provide support to victims and investigate complaints fairly.
The final rules, which take effect in August, codify for the first time sexual assault grievance proceedings that until now were covered by Education Department guidance and recommendations.
The Obama administration issued a “Dear Colleague” letter in 2011 and a supplementary document in 2014, which defined sexual harassment broadly and held schools liable for incidents they knew about or “reasonably should” have known about. They asked schools to adopt a “preponderance of evidence” standard in adjudicating cases and discouraged crossexamination and mediation between victims and accused students.
Victims rights groups said that approach shepherded in a new era of accountability at colleges, putting schools on notice that Title IX did not only address equal access to sports teams. The Obama administration found a pattern of coverups and rampant mishandling of Title IX proceedings in both higher education and elementary and secondary schools, and initiated highprofile investigations at schools that carried the threat of losing federal funding.
Fatima Goss Graves, president of the National Women’s Law Center, vowed to fight the new rules in court, saying victims “refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.”