This much is clear: If your child is a victim of sexual misconduct at school, or an accused offender, administrators must soon respond to their cases in major, untested ways. That could mean a courtroom-like hearing where lawyers would cross-examine youthful witnesses and challenge their credibility, a huge shift from traditional behind-the-scenes investigations of highly sensitive and damaging allegations.
The final Title IX rule, anticipated to arrive this month, will invite fury: DeVos has said every survivor must be taken seriously — but also that the accused can’t be presumed guilty. The Obama administration in 2011 laid out guidance pushing schools to resolve an epidemic of complaints of sexual assault and harassment. But DeVos scrapped the Obama-era policies, saying they were unfair to everyone involved, and she now wants to balance the scales of justice with clear, formal rules. “Our proposed rule recognizes that we can continue to combat sexual misconduct without abandoning due process,” she says.
Observers say they’re on edge, in the dark and anticipating multiple legal challenges as they await a final regulation that’s been years in the making and clashes head-on with the fervor of a global #MeToo movement. A draft of the proposed final rules governing sexual harassment and assault drew a staggering 124,000 public comments.
Brett Sokolow, an attorney and Title IX consultant, predicted “systemic failure” within a few years as both colleges and K-12 schools struggle to put in place the federal requirements.
"I think the system potentially collapses under the weight of the litigation that comes from this,” he said.
Colleges and schools would face stricter definitions of misconduct and new standards for launching investigations under the DeVos plan. Victims would have to navigate changed requirements to file complaints, and alleged perpetrators may have an opportunity to challenge their accusers, through lawyers or advisers.
Men's rights advocates and defense lawyers laud the new proposed rules, saying they represent a first step to level the playing field for men accused of misconduct on college campuses. They believe today’s Title IX investigation system is biased, and say the new rule restores due process for accused offenders, as DeVos intends.
But victims’ advocates argue the proposal weakens protections for survivors. They say a new, narrowed government definition of sexual harassment and misconduct will deter victims from reporting incidents.
The Education Department would not comment on the rule until it is finalized and published.
That move is expected to occur soon, DeVos confirmed at a recent House hearing.
In writing the new rules, DeVos’ administration said federal standards should align with Supreme Court precedent that set out when schools are liable for monetary damages under Title IX in private lawsuits.
Her department argues modern presidential administrations, rather than issue consistent regulations, have instead sent out a sheaf of legal guidance for schools to follow. The result is muddled orders that are unfair to both victims and the accused.
At a gathering of conservative lawyers earlier this year, DeVos praised the Obama administration’s intentions on campus sexual misconduct, but said the administration “overreached, imposing policy by political letter.”'
“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment," DeVos said when her administration’s draft rules were issued in 2018. "That starts with having clear policies and fair processes that every student can rely on.”
The Education Department estimates the new rule could save upwards of $360 million over 10 years. Yet even that figure is in dispute as Democrats on the House Oversight Committee recently accused the department of underestimating the rule’s impact in a larger broadside over the regulation.
While the effect on college campuses has been widely discussed, advocates for elementary and high schools say the new regulation could spark chaos in a K-12 system that already struggles to address sexual misconduct perpetrated by students or staff.
Advocates, researchers and attorneys worry the government is erecting an unfunded and burdensome mandate that will discourage young victims from coming forward and schools from investigating complaints. They are concerned even well-resourced schools cannot absorb the need to hire staff and train existing employees.
“Schools are not all prepared to handle these incidents as they occur right now,” said Joel Levin, a co-founder of the nonprofit Stop Sexual Assault In Schools organization.
“The new regulations will just create a more chaotic environment,” he said. “The Department of Education has tried to bring some college or higher education-level Title IX rules into K-12, where they don’t really work.”
The Education Department asked the public to weigh in on how the rules could best serve K-12 schools, but some advocates aren’t certain officials will make any changes.
“It’s pretty clear the regulations were really written in the post-secondary context and then, perhaps as an afterthought, some comments or nuances were placed in there around K-12,” said John Shields, director of an elementary and high school Title IX program at the ETR education research group.
“But I think the K-12 community hasn’t been given proper guidance and specific guidance that’s appropriate to the K-12 context,” he said.
Unlike the procedure for colleges, the proposed rules allow — but don’t mandate — elementary and high schools to hold live hearings where victims’ representatives can cross-examine alleged perpetrators.
But for a school to even investigate a potential Title IX violation, the proposed rules require students to send formal, signed complaints to a narrow group of teachers or school employees.
That’s prompted concerns that schools won’t be required to investigate a child’s reports to a nurse or coach, and that young victims might not press ahead with signed complaints.
The new requirements could also confuse employees who are subject to state laws that label them as “mandatory reporters” of suspected sexual abuse or assault.
“To me, the most damaging things that they’re doing are just making it harder for students to report sexual harassment,” Levin said. “There’s already barriers for K-12 students. A lot of students don’t report because they don’t think the school is going to do anything about it, or they’ll be blamed, or [the school] won’t discipline the perpetrator.”
Administrators would also face fewer requirements to investigate sexual misconduct incidents that occur off-campus, outside of school activities. That provision invited a particularly heated response from AASA, The School Superintendents Association.
“The way we read this regulation, if a student is sexually assaulted over the weekend at a friend’s house — instead of, for example physically assaulted at that same home — the school cannot investigate the assault simply because it is sexual in nature,” the association’s advocacy director wrote to DeVos in 2018.
In higher education, men’s rights groups said they welcome the proposed rule, though they also said it may not be enough to restore the presumption of innocence DeVos has aimed to invoke for the accused.
“One of the biggest concerns that we have, even with the new proposed rules, is that men are still going to face bias in these proceedings,” said Gregory Josefchuk, president of the National Coalition For Men Carolinas, a men’s rights advocacy group. “There seems to be a systemic belief that women would not lie about something as serious as this and that we should believe all women, regardless of what the evidence purports.”
Jonathan Taylor, founder of Title IX For All, said while the proposed rule is a good start, it doesn’t go far enough.
“False allegations of harassment are harassment,” he said. “Many schools, for example, do not punish false accusers and I think that's an area, that if there's been serious damage to the reputation of the accused, that should be evaluated.”
Victims advocacy groups argue that there's a level of difficulty just getting to the investigatory stage, let alone the live hearings, because schools could dismiss complaints out of hand. They fear the new definition of harassment, as well as a stipulation that campuses are no longer liable for sexual misconduct that happens off campus, will create a hurdle for those who want to make complaints.
Groups say the proposal threatens to reduce reporting on campuses, especially since most misconduct happens outside of the classroom, and reward institutions for not responding to misconduct.
“Because of the harassment or assault you've experienced, you're having trouble in school, you need more time on a test, you need some extra support, you need a shift in your schedule — the criminal justice system isn't going to fix that,” said Emily Martin, vice president for education and workplace justice at the National Women’s Law Center.
“Those are the sorts of responses that a school should be doing to ensure that sexual assault and sexual harassment aren't robbing you of your education,” she said.
Laura Dunn, who represents sexual assault complainants in Title IX investigations, and Justin Dillon, who has represented students accused of misconduct, said they prefer the live hearing, which has not been historically required in Title IX regulations.
“It gives you an opportunity to have them both be seen, compared and have their credibility assessed,” said Dunn, the founder of SurvJustice. “Single investigator models are horrible. Live hearings are much better. I'm confident that some victim advocates will cringe at that because they worry that victims aren’t coming in with support, but guess what, both sides have the opportunity to get support.”
One sure outcome is litigation. One victims' advocacy group is encouraging students and universities to publicly disavow the rule when it comes out — and plans to file suit in the hopes of postponing action by colleges.
“We anticipate that these rules will be caught up in court for a while, and so we would encourage schools to halt changes that they may make to their policy until the rule is actually promulgated,” said Sage Carson, manager of Know Your IX.
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