U.S. Department of Education Secretary Betsy DeVos on Friday released her department’s final draft of new Title IX rules governing how schools and universities handle sexual violence allegations. The proposed rules would reduce campus liability exposures, provide more support for sexual misconduct victims and bolster the rights of students who are accused of sexual assault, harassment or rape.
Unlike the Obama-era guidance on campus sexual assault, the new Title IX plan is a proposed regulation that will require public comment, reports the Washington Post. When the rules are finalized, they will carry the force of law.
The rules are being applauded by men’s rights groups but are receiving push back from victim advocates.
The proposed rules have some changes when compared to a preliminary copy of the rules that was obtained by the New York Times in August.
A significant revision involves the guarantee that the accused could cross-examine their accusers. Although the new Title IX rules still allow for this cross-examination, the questioning would now need to be conducted by advisers or attorneys, not the accused. Doing so would prevent a victim from being directly confronted by his or her alleged assailant, thus furthering their victimization. Additionally, the parties could be in different rooms during the interrogation, and the proposal bars questions about a victim’s sexual history.
Another change would allow both sides to appeal a ruling.
Under the proposed rules, campuses would also have the option to raise the burden of proof from the “preponderance of evidence” standard to the “clear and convincing” standard. However, whatever standard they choose must apply to any investigation, including those against employees. Because many union contracts and other agreements with faculty mandate the use of the “clear and convincing” standard, many schools could be forced to apply the higher standard to student complaints, reports the Washington Post.
The Obama administration’s 2011 Title IX guidance advised schools to use the “preponderance of evidence” standard.
Additionally, the sexual assaults that schools must adjudicate now only include incidents that happen on campus or are part of campus programs or activities. Under the Obama administration, campuses were required to investigate conduct regardless of where it happened.
Sexual assault victim advocates say narrowing the incidents campuses must adjudicate to only those that happen on campus will hurt victims.
“It is well established by case law that even if the underlying sexual assault occurred outside an educational program, it is continued exposure to the accused in the educational program that creates a hostile environment,” says S. Daniel Carter, who is president of Safety Advisors for Educational Campuses, LLC.
Other New Title IX Rules Include:
- The definition of sexual harassment applies to repeated complaints and egregious allegations. It includes “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 Obama administration’s definition was broader to include “unwelcome conduct of a sexual nature” including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” Although the new rules don’t define “hostile environment,” they do allow campuses to remove an accused person if they are determined to be a safety risk.
- Schools will only be held accountable for formal complaints filed through proper authorities. So, at a college, if a student reports an incident to a professor or resident advisor and that person fails to act, the university can’t be held liable because those individuals don’t formally handle complaints. However, in K-12 schools, if the report of an incident goes to a teacher, that teacher is considered a proper authority. This standard is different from the one dating back to 2001 when campuses could be held accountable if it knew or reasonably should have known about possible harassment.
- Campuses are barred from using the single adjudicator model. The decision maker should be separate from the Title IX coordinator or investigator.
- Schools can decide whether or not they will allow an appeals process.
- Schools can use mediation to reach informal resolutions. The Obama administration determined that mediation, even voluntary mediation, was not appropriate for sexual misconduct cases due to the power dynamic between the victim and accused.
- Campuses won’t be penalized for providing supportive measures — such as counseling, deadline extensions, class schedule changes, escort services, housing changes, increased security and monitoring, leaves of absences and more — to victims who don’t file a formal written complaint. Those measures include “nondisciplinary individualized services” and should be “nonpunitive, time-limited and narrowly tailored” to keep students in school, reports the New York Times.
- Investigations should be impartial (which is the same as the Obama guidelines), and resolutions should be prompt and equitable. Additionally, a campus’ treatment of the accused, not just the victim, could constitute sex discrimination.
- The accused should be presumed innocent until proven guilty.
Additionally, a new “deliberately indifferent” standard is created, meaning the campus would be violating the law if its response is clearly unreasonable “in light of known circumstances.” However, the proposed rules state that “the federal government should not second-guess a school’s response to every sexual harassment situation in a manner that improperly pressures schools to take particular disciplinary actions against offenders or unreasonable holds schools accountable for unpredictable actions of perpetrators.”
Carter believes this change is the most significant.
“The Department of Education would overturn 21 years, if not longer, of practice by applying the much narrower ‘deliberate indifference’ standard to Title IX enforcement,” he says. “In practice this will significantly diminish the scope of administrative enforcement by the Office for Civil Rights.
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