The Trump administration released new guidelines Wednesday for how universities should handle complaints of sexual assault and misconduct as part of a contentious overhaul that Education Secretary Betsy DeVos launched in 2017.
Now, under reworked federal rules, alleged student perpetrators will have added protections, including the presumption that they are innocent throughout the disciplinary process and the right to be provided all evidence collected against them. Those students can also cross-examine their accusers, although it must be done through a lawyer or representative.
The rules go into effect on Aug. 14.
The Department of Education’s changes are a reworking of the 1972 law known as Title IX, which prohibits gender discrimination, including sexual assault, on college campuses as well as in primary and secondary schools.
Under the Obama administration, the definition of sexual harassment was less specific — described as “unwelcome conduct of a sexual nature.”
But the meaning has become narrower, and misconduct must fall under certain categories, including unwelcome conduct that is “so severe, pervasive and objectively offensive” that it “denies a person equal access to the school’s education program or activity.”
The new rules also include that allegations of stalking, domestic violence and dating violence must be investigated.
Schools are still able to set their own standards of proof for whether a student violated a code of conduct policy.
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The decision to revamp the regulations was subject to public comment. It sparked strong rhetoric from assault survivors as well as civil liberties groups, and drew more than 124,000 comments on the Federal Register’s website in January 2019.
In March, three Democratic senators — Kirsten Gillibrand of New York, Patty Murray of Washington and Elizabeth Warren of Massachusetts — wrote a letter to DeVos asking her to delay formalizing the guidelines, which they consider “misguided,” and instead focus on helping schools and students navigate through the ongoing coronavirus pandemic. Eighteen state attorneys general wrote a similar letter.
The attention on how to address sexual assault on college campuses comes amid the larger #MeToo movement focusing on claims of sexual misconduct that might otherwise be ignored.
Advocates for accused students have argued that some of the guidance under the Obama administration was too loose and unfair to alleged perpetrators — prompting DeVos to rescind his measure and pledge that the Education Department would embark on a “workable, effective and fair system.”
But groups advocating for sexual assault victims worry that the changes will have a chilling effect on students coming forward if they feel uncomfortable with how they must report an alleged assault or worried about getting retraumatized.
Once school officials are made aware of an allegation, it must be taken seriously, the guidelines state.
But if a school acts “deliberately indifferent” toward a case, the Education Department would have to punish it only “if its response to sexual harassment is clearly unreasonable in light of the known circumstances.” It’s a higher bar than any previous administration has required.
There are minor changes in the final rules from the agency’s earlier proposal.
For instance, universities must also investigate off-campus reports at recognized fraternity or sorority houses or apartments if the alleged incident occurred as part of a university program.
Those that fail to adhere to Title IX requirements risk the loss of federal funding.
The Foundation for Individual Rights in Education, a nonpartisan civil liberties group that had criticized the guidance under the Obama administration, has argued that Title IX changes are “desperately needed.”
More than 500 lawsuits have been filed against institutions since April 2011 by accused students who say they were denied a fair process during campus judicial proceedings, according to the foundation.
“It looks like the Department of Education’s new regulations will ensure greater due process for students involved in certain types of cases, but universities should already be providing these important protections in all cases of serious non-academic misconduct,” Samantha Harris, the group’s vice president for procedural advocacy, said in a statement.
Meanwhile, there have also been hundreds of federal complaints to the Education Department filed by people who say the K-12 schools and universities they attended have mishandled their cases of sexual harassment and assault.
The Education Department has said changes to Title IX could drive down the number of investigations by schools and collectively help save institutions millions of dollars over the next decade.
