This month, Secretary of Education Betsy DeVos released a proposal that represents a significant reform of the rules governing campus sexual assault and harassment allegations. According to DeVos, these new rules will “strike a balance” between the rights of the accused and the victims, and ensure a fair grievance process. Yet in practice, the rules will cause considerable harm to victims — and may result in fewer victims coming forward. With less of an incentive to investigate, it may lead to colleges, universities and schools doing far less to protect students from sexual assault and harassment on campus.
Under the proposal:
The definition of sexual harassment would be narrowed. Instead of defining sexual harassment as “unwelcome conduct of a sexual nature,” it would be defined 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.” Under this definition, schools would only be responsible for investigating incidents that are part of campus programs and activities.
Incidents must be properly reported, which means to an official with authority to take corrective action. For K-12 schools, this includes any teacher. For colleges and universities, this includes the school’s Title IX officer.
Schools will be required to take allegations seriously once they have actual knowledge of them. However, they will only be penalized by the Department of Education if their actions are “clearly unreasonable in light of the known circumstances.”
In investigating complaints, schools must implement due process procedures, including a presumption of innocence, the right to an adviser or an attorney, and the opportunity to present witnesses and evidence. This is one of several measures that incorporate aspects of the legal process into the campus disciplinary process. The rules provide “rape shield” protections, which bar questions on matters such as the victim’s sexual history. Attorneys or advisers for the accused will be permitted to cross-examine victims. Schools may choose between two legal standards for hearings: “preponderance of the evidence,” or the higher standard of “clear and convincing evidence.” The final determination in hearings must be made by someone other than the person who conducted the investigation.
There are numerous ways that these proposed rules harm victims of sexual assault and harassment. Overall, they make it more difficult and more traumatic for victims to seek justice by creating barriers and giving alleged abusers ways to attack victims. Some of the more harmful changes include:
Limiting the definition of sexual harassment to make it much more difficult for victims to file complaints, and easier for schools to avoid responsibility for incidents that occur to their students at off-campus apartments, houses or bars;
Requiring victims who have just experienced a traumatic event to “properly report” sexual assault or harassment, which may result in cases being thrown out due to technicalities;
Setting a very low standard for schools, in that they will only be penalized (i.e., lose federal funding) if their actions in response to an allegation are “clearly unreasonable in light of the known circumstances;”
Giving the presumption of innocence in a civil rights case (a campus disciplinary hearing), which plays into the misconception that the victim is not to be believed;
Providing the accused with all of the evidence collected during the investigation, which is a standard in criminal cases — not in civil rights cases;
Allowing attorneys or non-attorney advisers to cross-examine victims, which will subject victims to trauma, particularly if the non-attorney adviser (who is not bound by the same ethical rules as an attorney) is questioning the victim;
Failing to provide for an attorney for the victim in the event that they cannot afford one, which sets up situations where an accused may have an attorney but the victim does not, leaving them without protection when being cross-examined;
Setting up campus disciplinary hearings to be more like the criminal justice system, where the vast majority (995 out of 1000) rapes and other crimes of sexual violence go unpunished; and
Allowing schools to choose a higher evidentiary standard, which may make it difficult to impossible to find in favor of the victim.
Ultimately, these rules will make victims of campus sexual assault harassment less likely to report incidents against them because the process is more difficult, it will be harder to hold their abusers accountable, and they will likely be re-traumatized in the process. Schools will also be far less accountable for their action -- or inaction -- in response to sexual assault and harassment reports. For these reasons, we strongly oppose the Department of Education’s proposal.
This proposal is open for public comment here.