San Diego Union-Tribune

NEW RULES ISSUED ON CAMPUS SEXUAL ASSAULT

Rights bolstered for students accused of misconduct

- BY ERICA L. GREEN

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.

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Betsy Devos

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