NEW RULES ISSUED ON CAMPUS SEXUAL ASSAULT
Rights bolstered for students accused of misconduct
Education Secretary Betsy Devos on Wednesday issued final regulations on sexual misconduct in education, delivering colleges and schools firm new rules on how they must deal with one of the biggest issues that have roiled their campuses for decades.
The rules fulfill one of the
Trump administration’s major policy goals for Title IX, the 48-year-old federal law that prohibits sex discrimination in programs that receive federal funding, bolstering due process protections for accused students while relieving schools of some legal liabilities. But Devos extended the reach of the law in other ways, establishing dating violence as a sexual misconduct category that must be addressed and mandating supportive measures for alleged victims of assault.
Title IX had become a flash point in recent years after sexual assault cases rocked high-profile universities like Stanford and Duke, and serial sex abuse by staff at the University of Southern California, Michigan State and Ohio State demonstrated how schools had failed to properly investigate complaints.
But enforcement of the law has also grown contentious, especially since the Obama administration issued guidance documents in 2011 and 2014 that advised schools to ramp up investigations of misconduct and warned that their failure to do so could bring serious consequences. Critics said schools felt pressured to side with accusers without extending sufficient rights to the accused. And dozens of students have won court cases against their colleges for violating their rights under the Obama-era rules.
When Devos announced in 2017 that she was rescinding the Obama-era guid
she said she would give schools, from kindergarten to college, regulations with the force of law that balanced those rights. Her final rules, which she called a “historic” break from the “kangaroo courts” of the past, take effect Aug. 14.
“Today we release a final rule that recognizes we can continue to combat sexual
misconduct without abandoning our core values of fairness, presumption of innocence and due process,” Devos said on a call with reporters.
Victims rights groups promised they would challenge the rules in court.
“We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug,” said Fatima Goss Graves, president of the National Women’s Law Center.
The new regulations adopt the Supreme Court’s definition of sexual harassment as “unwelcome conduct that is so severe, pervasive and objectively offensive,” and they require colleges to hold live hearings during which accusers and accused can be cross-examined 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, not other authority figures like residential advisers.
Schools will also be responsible for investigating only episodes said to have occurred within their programs and activities — not, for instance, apartments not affiliated with a university. 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 accusations, it would have to be proved “deliberately indifferent” in carrying out mandates to provide support to victims and investigate complaints fairly. The 2,000-page document emphasizes “equitable” treatment and the presumption of innocence.
The rules are the most concrete and wide-reaching policy measure of Devos’ tenure and were pushed by President Donald Trump. Groups that have long fought the Obama-era rules claimed victory Wednesday.
“The department’s new regulations require schools to provide students with a fundamentally fair process before imposing these life-altering consequences,” said Samantha Harris, a senior fellow at the Foundation for Individual Rights in Education, a higher education group.
The Obama administration’s “Dear Colleague” letter of 2011 and supplementary policy clarification in 2014 defined sexual harassment broadly and held schools liable for episodes they knew about or “reasonably should” have known about. They asked schools to adopt a “preponderance of evidence” standard in adjudicating cases and discouraged cross-examination and mediation between accusers and accused.
Victims rights groups said that approach shepherded in a new era of acance,
countability 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 cover-ups and rampant mishandling of Title IX proceedings in both higher education and elementary and secondary schools, and it initiated high-profile investigations at schools that carried the threat of losing federal funding.
Arne Duncan and John King, President Barack Obama’s secretaries of education, said in a joint statement that the rules were “part of an egregiously troubling pattern to continue to roll back civil rights for students, especially those most underserved.”
“We believe, as noted in the 2011 Obama administration guidance, that institutions should hold those who violate Title IX accountable for their actions and protect victims’ rights,” the former secretaries said. “To do otherwise is simply unacceptable.”
Devos’ initial proposals, released in November 2018, elicited more than 120,000 public comments and prompted hundreds of meetings between Education Department officials and advocacy groups.
The final rules were changed to address at least some concerns. The department amended provisions that would have allowed schools to ignore virtually all accusations of misconduct that occurred off campus, and officials changed proceedings that critics argued would have re-traumatized victims.
For instance, the department did extend responsibility beyond campus, saying that schools would be obliged to investigate accusations of misconduct that occurs in “a building owned or controlled by a student organization that is officially recognized by a post-secondary institution,” like a fraternity or sorority.
Jurisdiction also extends to “locations, events or circumstances”
over which the school exercised “substantial control,” like field trips or academic conferences. However, the rules exclude actions that happen to students studying abroad.
It also softens initial proposals for cross-examination. It prohibits students from questioning each other in personal confrontations, leaving that to advisers and lawyers. A hearing officer must first decide if the questions are relevant, and questions about a person’s sexual history are generally not.
Lawyers for accused students pressed for cross-examination, which they believed was a crucial tool for rooting out the truth and frivolous complaints.
Justin Dillon, a lawyer at Kaiserdillon, which has represented more than 100 accused students at more than 100 schools, said the rules were a “huge victory for basic fairness and long overdue.”
“It was a process that resembles almost nothing that the administration has done; it was honest, it was thorough,” he said. “If the Trump administration had put half the thought into the coronavirus as they did into the Title IX regulations, we’d all be going back to work now.”
The department maintained that the Supreme Court’s strict definition of harassment was so severe and pervasive that it effectively denies a person access to a school’s education program or activity. But the final rule added that conduct could be harassment if “a reasonable person” would say it was. The department also clarified that sexual assault, dating violence, domestic violence and stalking are also sexual harassment, and those accusations would not have to meet a severe and pervasive standard.
The rules still mandate that schools dismiss complaints that do not meet the sexual harassment definition, even if the accusations are proved true.
Green writes for The New York Times.