Terry H. Schwadron
Nov. 19, 2018
Education Secretary Betsy DeVos has announced new proposed regulations that essentially provide more protections for the accused in college sexual assault cases and make it harder for survivors to report incidents by narrowing the definition of sexual misconduct.
It is a curious proposal at the height of the #MeToo movement. It is a curious proposal at a time of rising sexual assaults on campus. It does, however, fit with President Trump’s recent remarks on #MeToo after the Brett Kavanaugh hearings basically that the movement makes it is a bad time to be a man.
The departmental statements say that the proposals, anticipated for several months, aim to clarify and to bring better balance to charges and defense in the non-criminal world of campus justice. Indeed, what they likely will do is reduce the number of sexual misconduct cases brought overall, which saves money for colleges, according to estimates included with the proposals.
“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined. 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. They are the very essence of how Americans understand justice to function,” reads the statement.
As soon as these proposed changes are published in the Federal Register, the public can comment on them during a 60-day review period. The proposed rule, section-by-section are here. The full rule in its entirety is here.
To those who have been involved in Title IX cases, under which sexual misconduct cases fall, the proposals are a pretty clear message to let schools off the hook for sexual assault allegations and a boost for colleges’ bottom lines. In August, leaked copies of the new policy drew heavy criticism from survivor advocacy groups for making it harder for victims to report harassment and assault.
Title IX, the federal civil rights law created to ensure gender equality in education, applies to all schools that receive federal funding, including nearly all colleges and universities, all public K-12 schools and a few private K-12 schools that receive federal dollars. The regulations differ slightly for K-12 schools versus college and university campuses.
The suggested guidelines narrow the definition of sexual misconduct, defining it as “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.” That is in accord with Supreme Court decision language, the department says.
Jess Davidson, executive director of survivor advocacy organization End Rape on Campus, told the Huffington Post that “The definition is extreme and it’s going to require that students are harassed multiple times before they are able to receive any form of accommodation.”
The changes say thata school “is only responsible for responding to conduct that occurs within its ‘education program or activity’” rather than, say, off-campus, where most students live. “Would it make sense for Larry Nassarnot to be held accountable if he only abused student athletes at off-campus events? It’s absurd,” Sejal Singh, policy coordinator for Know Your IX, said to Huffington Post in August.
Under the proposals, the accused can participate in a live cross-examination of the alleged victim, but only indirectly, as through a lawyer or other third person. However, the accuser is allowed to request that the accused watch from a separate room which prohibits “any unnecessary trauma that could arise from personal confrontation.” Overall, the policy recommends mediation rather than a contentious campus hearing.
The guidelines would restrict whom a victim can report to in order to implement corrective measures through the school. College students would only be able to report a Title IX issue with the school’s Title IX coordinator.
The proposed guidelines state a school can use “either the preponderance of the evidence standard or the clear and convincing evidence standard.” This is the type of guideline that we saw at work in the hearings to confirm Supreme court justice Brett Kavanaugh, putting the burden of proof on the victim.
The proposals did draw negative criticism from Rep. Carolyn B. Maloney, D-NY, and Sen. Patty Murray, D-WA, who saw it as harmful for women. Women’s groups and the American Federal of Teachers joined in the chorus. The common plaint: The changes demonstrate that protecting students is not a priority for DeVos.
Since she was confirmed as Secretary of Education last year, DeVos has been on a mission to overhaul the Obama-era Title IX guidelines and regulations. In 2017, DeVos met with people “wrongly accused” of sex crimes, men mostly, and has rescinded related Obama-era guidelines.
How this helps provide a feeling of safety on campus is beyond me.