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Inside the Classroom

DeVos releases sexual assault rules she hails as balancing rights of victims, accused

| Friday, Nov. 16, 2018, 10:36 p.m.
The Washington Post

WASHINGTON — 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.

The proposed regulation replaces less formal Obama-era guidelines tilting more toward accusers. DeVos rescinded the Obama measure a year ago.

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. Accused students would be entitled to lawyers and cross-examination.

“The proposed regulation is grounded in core American principles of due process and the rule of law,” the Education Department said in a summary of its proposal. “It seeks to produce more reliable outcomes, thereby encouraging more students to turn to their schools for support in the wake of sexual harassment and reducing the risk of improperly punishing students.”

In addition, schools are encouraged to offer supportive measures to accusers even if they do not file a formal complaint. The department will not consider a school to be skirting its responsibility to investigate an accusation if instead it offers accusers accommodations such as a schedule change, a no-contact order or new housing.

The rules come after years of rising pressure on universities to better respond to allegations of sexual assault and other misconduct. Ahead of the release, advocates for women and others charged that the rewrite will result in victims’ claims being ignored or minimized.

At a roundtable discussion Thursday, Rep. Maxine Waters, D-Calif., predicted the DeVos approach “will prioritize the interests of the institutions and the accused, while undermining protections for survivors.”

But the new direction has been welcomed by some university administrators, conservative legal scholars and men’s rights groups, who say the Obama guidelines were overly prescriptive, confusing, lacked due process and were biased in favor of accusers.

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.

Some say that writing the rules into regulation is, by itself, an improvement.

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,” David Bernstein, executive director of the Liberty & Law Center at the Antonin Scalia Law School at George Mason University, said in an email. “Putting aside what one thinks of the substance of the changes (and I think they are overall quite welcome), it’s a relief to see the Department of Education actually following the right procedures.”

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 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 to 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 that 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 department argues that this strikes the right balance. Schools must act so that sexual harassment cannot be “swept under a rug even when institutional reputational and financial interests incentivize a school to do so,” the department says in a document describing the rule.

At the same time, it said, “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 unreasonably holds schools accountable for unpredictable actions of perpetrators.”

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 schools may not use the lower standard if it relies on the higher one for allegations against employees, including faculty.

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.

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