DeVos Proposes Controversial Rewrite of Rules for Investigating Campus Sexual Assault

Last Friday, Education Secretary Betsy DeVos released—for a 60-day public comment period—new rules for how schools that receive federal dollars must handle allegations of sexual assault.  The Washington Post‘s Laura Meckler explains: “The rules 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 the 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…. 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.”

Meckler reports that the new rules would, if finalized, narrow the definition of sexual assault: “(T)he proposal puts forth a narrow definition of harassment. Obama 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.’ ”  Meckler adds that under the new rules, a student’s complaint of sexual abuse must be reported to an “official with authority to take corrective action.”  That person could include the school’s Title IX coordinator, but would not include a complaint, for example, made by a student to a teacher or other unauthorized personnel.  Additionally, the incident must have occurred on campus or as part of the school’s programs or sponsored activities. Besides narrowing the definition of campus sexual assault, the new procedures are burdensome for the victims and likely to discourage the reporting of serious incidents.

A major change proposed in the new rules is that colleges would be required to hold a formal hearing once a complaint is received. Meckler reports: “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.”  Advocates for victims of sexual assault believe cross examination is likely to be traumatic for victims and thereby to discourage them from coming forward.

The NY TimesErica Green explains further: “The most significant changes outlined in the final proposal include procedural mandates that underscore Ms. DeVos’s belief that the system shaped by the Obama administration lacks fairness, consistency, and due process. The new rules codify procedures that would essentially turn college boardrooms into courtrooms when adjudicating sex assault disciplinary proceedings. Under the new rules, schools would be required to hold live hearings and would no longer rely on a so-called single investigator model that has become common at colleges. Accusers and students accused of sexual assault must be allowed to cross-examine each other through an adviser or lawyer. The rules require that the live hearings be conducted by a neutral decision maker and conducted with a presumption of innocence.”

In live hearings, the accuser and the accused would be represented; the involved parties would not be required to confront each others’ testimony live, in the same room.  But requiring formal representation for both parties introduces potential problems for the colleges and for the two parties. Green quotes Terry W. Hartle, an officer with the American Council on Education, an organization which represents college presidents: “Colleges and universities are not courts, and these sort of proceedings would require us to legalize student disciplinary proceedings… We lack the knowledge, the expertise, and credibility to do this.”

Writing for The Atlantic, Adam Harris explores further the changes implicit in live hearings with representation for the two parties.  Harris interviews Scott Schneider, an attorney specializing in higher education: “Schneider worries that this could create a system where rich students who can afford a good attorney would have an unfair advantage in the hearings.” When Harris asks Schneider whether colleges couldn’t maintain in-house counsel for the purpose of handling such hearings, Schneider responds: “The vast majority of institutions that are operating in this space are pretty limited in their resources… I worry that what’s going to happen here is that this process is going to become so cumbersome by design that people start pushing for ‘informal resolutions of these sorts of complaints.’ ”  “In other words,” explains Harris, “due to labor and budget constraints, institutions might find informal processes—such as issuing no-contact orders, counseling, and other methods of resolving sexual-misconduct allegations—more appealing.”

Because the definition of sexual assault in the new rules has been redefined much more narrowly, because the complexity of reporting is likely to discourage victims from coming forward, and because there are worries about the capacity of institutions to provide fair hearings, the proposed changes are supported by conservatives and men’s rights groups, but opposed by victims’ rights organizations—and by Democrats in Congress.  POLITICO’s Benjamin Wermund quotes Senator Lamar Alexander, chair of the U.S. Senate Health, Education, Labor, and Pensions Committee, who comments that with the new proposal, “DeVos has begun the appropriate public rulemaking process… to bring much needed clarity to the federal rules helping colleges protect the safety and rights of students.”

In contrast, Wermund quotes Senator Patty Murray, the HELP Committee’s Ranking Democrat, who condemns the proposal as, “another step toward sweeping the scourge of sexual assault under the rug.”  Murray urges, “every woman, man, mom, dad, and anyone else who cares about campus safety and preventing sexual assault to make your voices heard and demand that Secretary DeVos and President Trump withdraw this proposal immediately.”