Education Department unveils new Title IX guidance for campus sexual assault: Here's what would
Education Secretary Betsy DeVos unveiled the long-awaited overhaul to the guidance for how schools handle complaints of sexual misconduct, adding more protections for those who have been accused of assault and harassment.
The proposed Title IX changes would limit the definition of sexual harassment and allow for the cross-examination of the accused by the accuser’s defense team.
The proposal also seeks to “clarify that in responding to any claim of sex discrimination under Title IX, recipients are not required to deprive an individual of rights that would be otherwise guaranteed under the U.S. Constitution; prohibit the Department’s Office for Civil Rights (OCR) from requiring a recipient to pay money damages as a remedy for a violation of any Title IX regulation; and eliminate the requirement that religious institutions submit a written statement to qualify for the Title IX religious exemption."
While conservatives have heralded the changes, victims’ rights advocacy groups have slammed the proposed regulations.
“DeVos is making plain with these unlawful rules that she is turning her back on survivors. The results of this rule are clear: Fewer will report their assaults and harassment. Schools will be more dangerous. And, more survivors will be denied their legal right to equal access to education after experiencing sexual violence,” Jess Davidson, the interim director of End Rape on Campus, said in a statement.
The Democratic National Committee accused the Trump administration of delivering “one devastating blow after another to women and victims of sexual misconduct.”
But DeVos, one of the more controversial figures in President Trump’s Cabinet, said her focus is “on ensuring that every student can learn in a safe and nurturing environment.”
“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” she said in a statement. “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas.”
Last year, DeVos rescinded a set of 2011 rules created during the Obama administration that guided schools on how to handle complaints. Advocates for accused students said those regulations tipped the scales in favor of accusers, and some college leaders complained the rules were too complex and could be overly burdensome.
The Title IX law, enacted in 1972, forbids discrimination based on sex in education. It was once seen as a measure to ensure equity in college sports, but President Barack Obama’s Department of Education’s Office for Civil Rights issued several letters in 2011 directing college administrations on how to tackle the nation’s ongoing campus rape epidemic – and prove on paper they were doing so – or risk losing federal funding. Since then, many colleges saw an uptick in lawsuits alleging mishandling of assault complaints.
According to RAINN, the nation’s largest anti-sexual violence organization, 11.2 percent of college students experience rape or sexual assault.
Read on for a look at what could change with DeVos’ new plan.
Definition of sexual harassment
The proposed changes narrow the definition of what exactly constitutes sexual harassment.
Under the new regulations, it would be defined as: “unwelcome sexual conduct; or unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
Cross-examination of accuser
For sexual assault cases in higher education, the accuser has the right to cross-examine the accused and witnesses through an “advisor” or attorney during a live hearing, according to the proposal.
During the cross-examination, questions about either party’s sexual history cannot be asked, in line with rape shield protections which guards victims against “invasion of privacy, potential embarrassment and stereotyping,” according to the proposal.
Either party may also request to be separated, placed different rooms, with a video feed for the live hearing.
“The proposed regulations thereby provide the benefits of cross-examination while avoiding any unnecessary trauma that could arise from personal confrontation between the complainant and the respondent,” the proposal states.
For elementary and secondary schools, cross-examination is allowed but not required due to the young ages of those involved.
What a university is responsible for
The plan would only hold schools responsible for investigating complaints if the incident occurred on campus or another area overseen by the school and only if they are reported to certain campus officials with the authority to take action.
However, it does allow for schools to offer support services or intervene with a student conduct proceeding if a reported incident happened outside of that scope.
The Education Department would also adopt the policy that a school “acts with deliberate indifference only when it responds to sexual harassment in a manner that is ‘clearly unreasonable in light of the known circumstances.’”
Mandatory supportive measures
The proposal requires schools to provide free “supportive measures” to the accused or accuser – even if a formal complaint hasn’t been filed.
These services, which are meant to be confidential, include counseling, changes to class or work schedules, extensions on deadlines, campus escort services, changes to housing, leave of absence or increased security.
A school will be “given a safe harbor from finding of deliberate indifference” by the Education Department if it offers one of those services to someone after a formal complaint, the proposal said.
Presumption of innocence
The proposal would ensure schools establish a “presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.”
Under the Obama administration's guidance, schools were told to use a “preponderance of the evidence” standard, meaning an allegation “is more likely than not” true. Under the proposal, schools would adopt a “clear and convincing” standard, meaning the claim is highly probable.