Education Secretary Betsy DeVos on Friday released her long-awaited rewrite of rules governing campus sexual harassment and assault allegations, narrowing the cases schools must investigate and giving the accused more rights.
But others said the proposal restores balance in a system that had been skewed too far in favor of the accusers.
DeVos said she had worked to strike a balance while creating a more transparent and reliable process.
“We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas,” she said.
Under the proposal, fewer allegations would be considered sexual harassment and schools would be responsible only for investigating incidents that are part of campus programs and activities and that were properly reported. Schools could choose a higher legal standard for considering evidence.
The rules come after years of rising pressure on universities to better respond to allegations of sexual assault and other misconduct. They land at a time when the #MeToo movement brought increased public scrutiny and accountability to harassment and assault. This proposal, by contrast, pushes the pendulum in the reverse direction.
“I am dismayed with the Trump administration’s cruel proposal that will have the effect of putting power in the hands of abusers & dissuading survivors from coming forward,” John B. King Jr., who served as education secretary in the Obama administration, said on Twitter.
The most divisive aspect of the proposal may be allowing attorneys for the accused to cross-
examine accusers.
The proposed rule goes too far in incorporating legal concepts into a school disciplinary setting, argued Terry Hartle, a senior vice president at the American Council on Education, which represents university presidents.
“This would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing,” he said. “We are not courts. I’m not sure we should try to act like courts.”
But advocates for the accused called this an essential change that could help counter inherent bias among college administrators who investigate incidents.
“Cross-examination is the most effective method to get to the truth,” said Kimberly C. Lau, who leads the college discipline practice at the law firm Warshaw Burstein.
The regulations stem from a 1972 law known as Title IX that bars sex discrimination at schools that receive federal funding. Most of the attention is on higher education, but the rules also apply to elementary and secondary schools.
Unlike less formal Obama-era guidance that is being replaced, the new plan is a proposed regulation that will be subject to public comment and, once finalized, carry the force of law.
Critics said the Obama approach was confusing for universities and improperly made outside the formal rulemaking process.
Using guidelines “allowed the Obama Department of Education to essentially make up rules that had no basis in any relevant statute or Supreme Court opinion,” said David Bernstein, executive director of the Liberty & Law Center at the Antonin Scalia Law School at George Mason University.
Overall, the proposed regulation describes what constitutes sexual harassment or assault for the purpose of Title IX enforcement, what triggers a school’s legal obligation to respond to allegations and how a school must respond.
Citing Supreme Court precedent, the proposal puts forth a narrow definition of harassment. Obama-era guidelines held that harassment was “unwelcome conduct of a sexual nature.” The proposed regulation defines it as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”
The regulation also limits the circumstances that would mandate a school respond to an incident. The school must have “actual knowledge” of the allegations. At colleges and universities, that means the incident must have been reported to “an official with authority to take corrective action,” including the school’s Title IX coordinator. For K-12 schools, the report could go to any teacher.
In addition, the incident must have occurred within a school’s own programs or activities. That could include off-campus incidents if it were, for instance, in a building owned by the school, or at an event the school funded, sponsored, promoted or endorsed.
Once a school knows about an allegation, it is required to take it seriously. But the regulation specifies that it will be punished by the Education Department only if its actions are “clearly unreasonable in light of the known circumstances.”
The regulation also specifies that even if no formal complaint is filed, the school must offer the accuser supportive measures. It says colleges and universities doing this have a “safe harbor” from a later finding that they had failed to act. Elementary and secondary schools, however, may be required to file a formal complaint even if the victim does not want one, given “the need to protect younger students.”
In investigating complaints, schools are required to implement a range of due-process procedures, including a presumption of innocence, the opportunity to present witnesses and evidence, and the right to an adviser or attorney at all phases of the process.
Hearings are optional for K-12 schools, but for colleges and universities, a final decision must be made at a hearing. Cross-examination must be allowed but conducted by advisers or attorneys, not by the parties themselves. The regulation also provides “rape shield protections,” such as a bar on questions about an accuser’s sexual history.
Schools would be allowed to choose the standard they will use between “preponderance of the evidence” or the higher bar of “clear and convincing evidence.” But a school may not use the lower standard if it relies on the higher one for allegations against employees, including faculty members.
In addition, the regulation would require that the final determination in a case be made by someone who did not conduct the investigation, nullifying arrangements often used in which a single investigator does both.
Those procedural changes are important, said attorney Andrew Miltenberg of New York, who has represented more than 100 students accused of sexual misconduct. But he predicted that most universities will maintain the lower evidentiary standard in response to campus pressures.
“I think most universities are going to stay the course for fear of becoming ground zero for activists to say, ‘Look how terrible rape victims are being treated at this university,’ ” he said.
He said, though, that the new sexual harassment definition, requiring the behavior to be both severe and pervasive, “may be a little too restrictive.”
Suzanne Taylor, the University of California’s interim systemwide Title IX coordinator, said the new rules will “reverse decades of well-established, hard-won progress toward equity” but said the UC system would remain “steadfast in its commitment to combating sexual violence.”
Nick Anderson contributed to this report.
