DeVos: Colleges must crossexamine in sex assault cases
Colleges across America now must hold live test i mony hearings with c r o s s - e x a minati o n i n campus sexual assault cases, U.S. Secretary of Education Betsy DeVos announced Wednesday in putting new rules in place.
I n doi ng s o , DeVos moved the on-campus administrative investigations closer to mirroring a court hearing, complete with questions directed at the people who say they were assaulted.
The move reflects the way courts have been ruling in a steady drumbeat of l awsuits f r om students accused of sexual assault. The rules issued by DeVos are a direct rollback of requirements put in place by President Barack Obama's administration.
The new rules drew condemnation and promises of legal challenges from victim rights groups.
“Her rules would promote harmful policies that silence survivors and limit reporting. We promise to do everything we can to make sure these rules never go i nto effect,” the group Know Your IX tweeted out Tuesday night as reports began to surface that the rules were about to be released. “Survivors, we will never stop fighting for your rights!”
The need for regulations stems from a 1972 law known as Title IX that bars sex discrimination at schools receiving federal funding. The rule defines what constitutes sexual harassment or assault as part of Title IX enforcement, what t ri ggers a school's legal obligation to respond to allegations and how a school must respond. Title IX has the force of law. Schools that don't follow the rules can face steep fines.
Many on both sides — those fighting for more due process for the accused and those advocating for victims — believe the ultimate arbitrator of how campuses will handle these issues will be the U.S. Supreme Court in the near future, similar to how the court has ruled on the use of affirmative action in admissions.
The Depa r t ment o f Education released the new rules despite pleas from a number of organizations to delay them until after the coronavirus pandemic ends.
“The issue here is not the merits of these particular regulatory proposals,” the American Council on Education, which represents public and private two-year and four-year schools, wrote in a letter co-signed by 23 higher education associations. “Rather, the issue is that given the serious disruptions caused by the COVID- 1 9 pandemic, institutions simply do not have the capacity to implement these proposals at this time.”
The council wrote that implementation of the new regulations is expected to be enormously complex and burdensome for campuses. It will require a c o o r d i n a t e d e f f o r t across many departments to identify, review and change existing policies and procedures in a sensible manner.
A t t o r n e y s g e n e r a l from 17 states, including California, Michigan, New
York and Virginia, also had urged a delay.
According to that letter, finalizing the proposed rule now would also cause confusion about ongoing Title IX complaints and investigations, which have already been disrupted by the coronavirus, with campus cl osures and employees working remotely.
“Duri ng t hi s c r i s i s , schools will need the flexibility to fashion and revise investigation, resolution, and grievance procedures on an ongoing basis, in order to carry out Title IX's mandate in the manner that best addresses the impact of the pandemic and the needs of their school populations and communities,” the letter said.
I n 2 011 , t he Obama administration i s s ued what was known as a “Dear Colleague” letter, demanding colleges up their game when it came to sexual assault complaints.
C h a n g e s i n c l u d e d schools switching to a single investigator method. That meant a single university employee or outside expert did separate interviews with the person who said they were assaulted, the alleged assaulter and any witnesses and then wrote up a report. Both sides often had a chance to review the report, but couldn't ask each other or witnesses questions.