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Betsy DeVos: It’s time we balance the scales of justice in our schools

America’s students deserve to attend school focused on learning, with nothing limiting them from reaching their unique potential and preparing to lead successful lives. No student should have their education unfairly derailed.

That’s why there must be no tolerance for sexual harassment or assault in America’s schools — or anywhere else in the country, for that matter. And there should also be no tolerance for adjudicating these matters in a way that denies to any person access to the core principles that underpin our justice system, such as due process.

The federal civil rights law known as Title IX protects every student’s right to educational opportunities free from sex-based discrimination. Since assuming my role as secretary of education, I have met with survivors of sexual assault, accused students and school administrators. I have heard consistently that we can and must do better — and that we can and must support survivors and ensure fair grievance processes.

Last week, the Education Department released for public comment a proposed regulation regarding Title IX implementation. The rule would require schools to address sexual misconduct by assisting and protecting victims of sexual misconduct, while affording due-process protections to those accused.

It is well known that survivors can face emotional and psychological challenges when reporting sexual harassment and assault. We must continue to have in place policies and procedures that encourage survivors to come forward, and we must support those who do. No report can ever be swept under the rug.

Our proposed regulation provides a more precise description of supportive measures that schools can offer to enable survivors to heal from trauma and continue their education. These measures include academic course adjustments, counseling, no-contact orders, dorm room reassignments, leaves of absence and class schedule changes. This gives survivors more control over the process by making supportive measures available whether or not there is an investigation.

The proposed rule also contains a provision, known as a “rape shield,” that protects those bringing complaints from inappropriate questioning about their sexual histories when they participate in a grievance process. Further, under our proposal, when a person is found responsible for sexual misconduct, the school must provide remedies to the survivor. Appeal rights must be equally available to both parties, not just to the accused.

A fair process treats each party with dignity and ensures the integrity of final decisions. Having outcomes overturned and relitigated because of process concerns — which has happened dozens of times in recent years — can be counterproductive to survivors. This is why unbiased decision-makers need to objectively consider the testimony of both parties and other available evidence before reaching conclusions about what happened and what to do about it. Our proposed rule would require schools to apply basic due-process protections for students, such as the presumption of innocence, the right to know of allegations against them, the right to examine and challenge the evidence and the right to an unbiased decision-maker. That includes prohibiting the “single investigator” model, in which determinations are made by the same person who has investigated the case — a situation akin to a prosecutor also serving as a judge.

Colleges and universities would also need to hold a live hearing in which cross-examination could be conducted by the parties’ advisers, even if that means putting the parties in separate rooms to foreclose the possibility that a survivor could be traumatized by personal confrontation with a perpetrator.

Some may mischaracterize our proposals as tilting the scales of justice, but we believe they simply balance them. Our proposed framework supports survivors while safeguarding due process, helping make Title IX protections against sex discrimination a reality for all students. Indeed, it is difficult to understand how people can object to procedures premised on the foundational concept of due process, or how anybody could have confidence in a system that lacks such protections.

Remarkably, in an area as important as sexual misconduct, the previous administration sought to implement Title IX through informal guidance letters. These letters, issued without sufficient public input, forced schools to address sexual violence and other misconduct in an opaque environment of uncertainty and ambiguity. By contrast, the Trump administration is taking an important step, through proper and legal procedures, to make sure all schools and colleges clearly understand their legal obligations under Title IX.

We welcome feedback on our proposal to ensure the final rule benefits from those with expertise and those who have a stake in these important issues.

Throughout this process, my focus was, is and always will be on students. The stakes are high for the well-being of every student involved in a sexual misconduct incident. Every student on campus deserves to learn in a safe environment, and we must continue to keep our schools and campuses safe for all.

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