Education Secretary Betsy DeVos released a proposed rule Friday that would significantly reduce the obligations of colleges to investigate complaints of sexual misconduct.
The rule, which DeVos argued would restore fairness to the process of adjudicating complaints, also adds protections for accused students. But women’s groups and advocates for survivors of sexual assault warn that it will undermine the rights of victims. And they say the rule will let colleges off the hook for not taking the issue of sexual misconduct seriously.
One of the biggest changes from previous federal policy is that institutions would be responsible only for investigating misconduct that occurred within programs sanctioned by the college. Advocates for victims had warned this would leave students assaulted or harassed off-campus without recourse, although documents released by the department Friday emphasize that geography alone would not dictate whether misconduct falls under the purview of Title IX.
The rule also would make colleges responsible for investigating cases when they have "actual knowledge" of misconduct, meaning a formal complaint is made to the proper officials on campus, a significant departure from Obama administration policies that required institutions to look into any misconduct that came to the attention of employees. In addition, the proposed regulation would allow colleges to set their own evidentiary standard for making findings of misconduct.
The rule would deliver on a key demand of advocates for accused students by requiring that colleges allow for cross-examination of students in those campus proceedings -- a major point of contention -- although no interaction by the parties themselves would be allowed.
"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 in a statement Friday. "That starts with having clear policies and fair processes that every student can rely on."
Although groups that represent accused students have welcomed the new cross-examination requirements and other changes advanced by DeVos, the biggest beneficiaries of the proposed rule may be colleges themselves. Some institutions, under pressure from campus activists, have already said they will maintain standards introduced under the Obama administration. But liability for institutions would be seriously reduced in the proposed rule.
Many college officials had complained about a lack of clarity surrounding their responsibilities after President Obama issued federal guidance on campus assault in 2011. Those standards pushed institutions to change their practices but lacked the force of formal regulation. Critics also complained the guidance failed to account for public input.
Catherine Lhamon, a former assistant secretary for civil rights in the Obama administration, said the consequences of the rule would be devastating for survivors.
“It seems like encouragement for schools to stick their heads in the sand and ignore information readily available to them,” she said.
DeVos unveiled the new regulation Friday well over a year after she rescinded the guidance documents from the Obama administration. After that decision last fall, the national mood on issues of sexual harassment and assault has shifted dramatically because of the Me Too movement.
After widely publicized allegations of sexual assault against Hollywood producer Harvey Weinstein arose, numerous women -- and some men -- have spoken up about harassment and abuse, including in the workplace. And many powerful men in media, entertainment and the government have been implicated, with some losing their jobs or being prosecuted for assault. Among them was Brett Kavanaugh, the new Supreme Court justice. After his nomination to the court in July, Kavanaugh was accused of sexual misconduct as a teenager by multiple women.
For many advocates for survivors on campus, it seems like a bitter irony that as American society’s awareness of the prevalence of sexual misconduct grows, DeVos is curbing protections they’d fought for and won years before.
DeVos, before rescinding the 2011 guidance last year, argued in a speech at George Mason University's law school that federal requirements had led colleges to trample on the rights of accused students.
“Due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one,” she said. “The notion that a school must diminish due process rights to better serve the 'victim' only creates more victims.”
Interim guidance released by the department shortly thereafter gave colleges the ability to set their own standard of evidence for findings of misconduct. The Obama administration had advised colleges that they should use a preponderance of evidence standard, meaning that institutions should determine if it was more likely than not that harassment or abuse occurred. Proponents of more due process protections for accused students had argued for a higher evidentiary bar, known as clear and convincing evidence. And the guidance allowed colleges to use informal resolution practices such as mediation if agreed to by both parties. The regulation proposed by the department codifies those and other changes.
Reactions to the Proposed Rule
In September, a draft version of the proposal was leaked online after The New York Times published a story reporting on key details in the document. The rule released Friday is largely in line with what was contained in the draft proposal. One significant change, though, would make mandatory the ability of accused students to cross-examine their accusers, which The Wall Street Journal first reported last month. An earlier draft of the rules would have allowed colleges to include cross-examination rights in campus proceedings but would not have made it mandatory. The Obama administration had discouraged that practice.
Advocacy groups had argued that the possibility of questioning by their assailants would traumatize victims of assault and discourage them from coming forward. But some courts have ruled that colleges should incorporate a form of cross-examination opportunity when determining misconduct. The proposed rule released Friday would only allow for advisers, and not students themselves, to ask questions of the other party. Colleges would be required to hold live hearings to determine misconduct under the regulation, which would not allow the "single investigator" model that has been employed by many institutions.
Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education, said including those cross-examination requirements was an important step.
"The right to due process and the right to procedural protections is not inherently in conflict with the responsibility of an institution to take claims of sexual misconduct seriously," she said.
But Terry Hartle, senior vice president for government and public affairs at the American Council on Education, the chief lobby group in Washington for colleges, said the group would have serious concerns if the rule would allow one student to hire a highly paid lawyer to grill the other party in campus proceedings.
Hartle said it would take time to process the impact of the nearly 150-page rule. “At the end of the day, we want to support the survivor and be fair to both parties,” he said.
The rule also narrows the definition of sexual harassment to reflect Supreme Court precedent, which requires complaints of pervasive and egregious behavior. The definition is one of several changes to federal guidelines that limits the responsibility of colleges. Another would require that colleges only investigate misconduct reported to the proper official on campus. Since the Obama guidance was issued, professors or other college employees who were made aware of abuse or harassment were expected to report it.
Just as significantly, the provision dealing with misconduct within a college's program or activities would significantly limit the scope of institutions' responsibilities and will likely be subject to intense scrutiny as the rule goes through a public comment process. Elizabeth Tang, an Equal Justice Works Fellow at the National Women’s Law Center, said that would leave students who are harassed by a classmate off campus without important protections.
"Sexual harassment that happens off campus and outside of a school activity is no less traumatic than on-campus harassment," she said. "The negative impact on the student’s education is the same either way if the student is forced to see their harasser regularly at school."
The department's proposed rule noted that 41 percent of college sexual assaults occur off-campus, Tang said.
The rule also includes specific supportive measures that colleges are expected to make available for students, with or without a formal complaint of misconduct. Those include counseling, no-contact orders, changes to class schedules and dorm reassignments.
The Association of Public and Land-grant Universities, the main lobby group for public higher ed institutions, released a statement Friday that did not take a position on the rule, although APLU president Peter McPherson said the group was reviewing the proposal carefully before releasing detailed comments.
"We fully expect that public universities will continue to work hard to far exceed what’s minimally expected in Title IX rules to support survivors while also ensuring due process for the accused," McPherson said.
The University of California System took a much tougher line. Suzanne Taylor, UC's interim systemwide Title IX coordinator, warned that the rule was overly prescriptive, too narrow in its definition of sexual harassment and would weaken the enforcement powers of the Office for Civil Rights.
"The Department of Education’s proposed changes will reverse decades of well-established, hard-won progress toward equity in our nation’s schools, unravel critical protections for individuals who experience sexual harassment, and undermine the very procedures designed to ensure fairness and justice," Taylor said. "This is yet another attack on students’ right to an educational environment free of sexual harassment."
When it is published in the Federal Register, the rule will enter a 60-day public notice and comment period, which many advocates began preparing for months ago.
Republicans and Democrats in Congress on Friday offered contrasting responses to the rule. Senator Lamar Alexander, the Tennessee Republican who chairs the Senate education committee, said the department's approach "seems to balance fairness and support for survivors."
But Washington Senator Patty Murray, the ranking Democrat on the committee, said DeVos and President Trump were "trying to take another step toward sweeping the scourge of sexual assault under the rug." And House Democratic leader Nancy Pelosi, who is vying to win back the speaker's gavel, promised the new Democratic majority in the chamber would take immediate action to fight the DeVos proposal.