New campus sexual assault rules bolster rights of accused

Education Secretary Betsy DeVos on Wednesday issued a new policy that will reshape the way schools and universities respond to complaints of sexual misconduct, bolstering the rights of the accused and narrowing the scope of cases colleges are required to investigate.

“We released 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 in a call with reporters.

In announcing the new policy, which carries the weight of law, DeVos condemned the Obama administration for adopting a “failed approach” that turned campus disciplinary panels into “kangaroo courts.”

DeVos’ changes narrow the definition of sexual harassment and require colleges to investigate claims only if they’re reported to certain officials. Schools can be held accountable for mishandling complaints only if they acted with “deliberate indifference.” Students will be allowed to question one another through representatives during live hearings.

The regulation largely mirrors a proposal DeVos issued in November 2018 but tempers some measures that drew some of the heaviest criticism.

The earlier proposal, for example, suggested that colleges would not be required to handle complaints arising beyond campus borders, but the final rule clarifies that their duties extend to fraternity and sorority houses, along with other scenarios in which the college exercises “substantial control” over the accused student and the “context” where the alleged misconduct occurred.

DeVos also clarified for the first time that dating violence, stalking and domestic violence also must be addressed under Title IX, and she added new language ordering schools to provide special support for victims regardless of whether they file a formal complaint.

Title IX is the 1972 law barring discrimination based on sex in education. The law and DeVos’ regulation apply to the nation’s colleges and universities, along with elementary and secondary schools.

Devos said the new rule “takes historic steps to strengthen Title IX protections for all students and to ensure all students can pursue an education free from sex discrimination.”

The changes take effect Aug. 14. The Education Department finalized them after reviewing more than 120,000 public comments submitted in response to DeVos’ proposal.

The final policy was quickly condemned by opponents who say it weakens protections for victims and will discourage many from reporting misconduct. The National Women’s Law Center promised to take legal action.

“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, the group’s president and CEO. “We won’t let DeVos succeed in requiring schools to be complicit in harassment, turning Title IX from a law that protects all students into a law that protects abusers and harassers.”

Rep. Bobby Scott, D-Va., chairman of the House education committee, said the policy “creates new barriers to justice” for victims.

“While the department’s stated intent was to secure due process for those accused of sexual misconduct, the actual effect of its rule will be to erode protections for students, weaken accountability for schools and make it more difficult for survivors seeking redress,” he said.

The overhaul drew praise from Republicans and from groups that represent the accused. Sen. Lamar Alexander, R-Tenn., chairman of the Senate’s education committee, said it “respects and supports victims and preserves due process rights for both the victim and the accused.”

The Foundation for Individual Rights in Education, a civil liberties group, called it an “important victory.”

“Students shouldn’t have to relinquish their basic rights when they step foot on a college campus, but at almost every top college in this country, that’s exactly what happens,” said Samantha Harris, the group’s senior fellow.

Among the most hotly contested changes is DeVos’ rule allowing students to question one another at live hearings. Advocates for victims say it’s a “cruel” policy that forces victims to relive the trauma of sexual violence.

DeVos added new limits around the hearings in her final rule, saying students must never be allowed to question one another directly, and she said only questions that campus officials deem “relevant” can be asked.

The Association of Public and Land-Grant Universities, an association of more than 200 public universities, said it still has significant concerns about cross examinations, saying the requirement will likely discourage reporting.

“Some will worry about an anguish-inducing process that includes requiring them to face direct questioning by respondents’ aggressive counsel in a live hearing courtroom-like setting,” said Peter McPherson, the group’s president.

While cross examinations will be required at the college level, the final rule makes it optional for primary and secondary schools.

Under the new rules, the definition of sexual harassment is narrowed to include “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive” that it denies a person access to a school’s education programs or activity.

The Obama administration, by contrast, used a broader definition that included any “unwelcome conduct of a sexual nature,” including “sexual advances, requests for sexual favors and other verbal, nonverbal or physical conduct of a sexual nature.”

Colleges now will be required to dismiss complaints that fall short of the updated definition, although any allegation of rape or sexual assault will be deemed to have met the definition.

Opponents also take issue with a measure in the final policy allowing schools to choose a higher standard of proof when deciding cases of sexual misconduct.

The Obama administration encouraged schools to use a “preponderance of the evidence” standard, meaning that the allegation is more likely than not true. But the new rules allow schools to use a “clear and convincing” standard, meaning the claim is highly probable.

Democrats and some education groups had asked DeVos to postpone the final rule until after the coronavirus pandemic, saying schools were too busy responding to the crisis to implement complex federal rules.

The American Council on Education, an association of college presidents, urged DeVos on Wednesday to delay the policy until summer 2021, saying the timing reflected “appallingly poor judgment.”

“This is irrational, unrealistic and completely at odds with the Trump administration’s oft-repeated statement to tread lightly when imposing complex new regulations,” the group said in a statement.

DeVos said schools had been given fair warning.

“Civil rights really can’t wait, and students’ cases continue to be decided now,” she said. “We’ve been working on this for more than two years, so it’s not a surprise to institutions that it’s been coming.”