Education Secretary Betsy DeVos is introducing new measures to colleges and universities that would, among other changes, allow people accused of sexual misconduct to cross-examine their victims and request evidence.
According to the New York Times, which obtained the proposed rules, last fall DeVos rescinded a 2011 letter prepared by the Obama administration, which detailed how schools that receive federal funding should handle sexual crimes.
“The truth is that the system established by the prior administration has failed too many students,” DeVos said in September 2017. “Survivors, victims of a lack of due process and campus administrators have all told me that the current approach does a disservice to everyone involved.”
As the Times reports, DeVos’s rules would maintain much of the law under Title IX, a federal civil rights law, which protects students from sex and gender discrimination, along with sexual misconduct. However, there are notable changes.
Here is what DeVos’s proposed rules entail:
A greater burden of proof: Instead of schools’ following the “preponderance-of-evidence standard,” meaning victims only need to prove that a crime occurred “more likely than not,” the evidence that schools use to determine a ruling would be held to a higher standard.
Increased rights for the accused: Schools would continue to use mediation to make informal decisions — a practice that former President Barack Obama’s guidelines discouraged to avoid intimating the victim — and allow the accused to request evidence from their alleged victims and cross-examine them.
A narrower definition of sexual harassment: Obama’s guidelines defined the crime more broadly, as “unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” But DeVos plans to specify the definition 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.” As the Times reports, unlike Obama’s guidelines, DeVos’s proposed rules do not clarify what a “hostile environment” is for victims but would allow schools to bar a person from entering campus after a “safety and risk assessment.”
A lesser burden for schools to investigate complaints: Under DeVos’s rules, schools would be legally responsible to investigate formal complaints only if school officials had “actual knowledge” of the crime. A formal complaint is one made to “an official who has the authority to institute corrective measures.” Additionally, schools would be responsible only for pursuing crimes that occurred on campus or during school programs, versus those that occurred in off-campus housing. According to Obama’s guidelines, reports the Times, schools were required to deal with complaints no matter where they occurred.
The option for schools to provide “supportive measures to students” who don’t want to file written complaints: With the goal of keeping kids in school, the institutions would be able to provide “nondisciplinary individualized services” and those that are “non-punitive, time-limited, and narrowly tailored.” Examples: counseling, campus escorts, and changes in housing.
A presumption of innocence for accused parties: According to the Times, “The administration explicitly says that just as an institution’s treatment of a complainant could constitute sex discrimination, so would the treatment of the accused.”
Education Department spokesperson Liz Hill told the Times that the department was “in the midst of a deliberative process,” and the Times’ reporting “is premature and speculative, and therefore, we have no comment.”
According to the National Sexual Violence Resource Center, one in five women is sexually assaulted while in college, and more than 90 percent of sexual assault victims on college campuses don’t report the crime.
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