Sexual Misconduct on College Campuses Now Protects Accused

Posted on by Dominique Noelle

Schools and colleges face a major overhaul in how they handle sexual misconduct allegations after Education Secretary Betsy DeVos on Wednesday rejected calls to delay the sweeping regulation until the conclusion of the national coronavirus emergency.

What We Know:

  • The Title IX rule will offer new rights to accused assailants and require colleges to respond to formal complaints with courtroom like hearings. The hearings, which will allow representatives for alleged offenders and victims to call witnesses and challenge their credibility, can occur live or virtually. Students and staff would also have a right to appeal a school’s decision.
  • To investigate and make decisions on complaints, schools will have to use trained personnel to evaluate evidence, though they could offer “informal resolution” options to involved students. Schools will also have their choice of using two standards of evidence to make decisions: a “clear and convincing” standard or a less-restrictive standard that relies on the “preponderance of evidence”.

“We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.” – DeVos

 

  • The White House described the policy change as a way to “restore fairness and due process to our campuses,” arguing that colleges and universities “have often stacked the deck against the accused, failing to offer protections such as a presumption of innocence or adequate ability to rebut allegations.”
  • Joseph Roberts, a law student, was expelled from Savannah State University after being accused of sexual assault three weeks before his graduation. Roberts, who said he was never afforded a hearing, in an interview praised DeVos’ new rule.
  • The rule expands the government’s definition of “sexual harassment” to include sexual assault, dating violence, and stalking. Schools must respond to misconduct that occurs at events where the institution “exercised substantial control” over both the accused and the context where the misconduct occurred.
  • The decision by DeVos to move ahead on the rule sparked intense objections from leaders in higher education that it should have been delayed while colleges struggle to reopen their campuses and stem financial losses.
  • Ted Mitchell, the head of the American Council on Education and a former top Education Department official during the Obama administration said, “Choosing this moment to impose the most complex and challenging regulations the agency has ever issued reflects appallingly poor judgement.”
  • Peter McPherson, the president of the Association of Public and Land-Grant Universities echoed those concerns. “The timing of the release of the final rule could not have been worse,” he said in a statement. “We know these regulations are not the end. Undoubtedly, there will be litigation and some members of Congress will consider legislative action.”
  • “Title IX officers don’t have more to do during the coronavirus pandemic. In fact, they have less to do because students aren’t on campus and therefore aren’t being victimized on campus,” said Jennifer Braceras, director of the Independent Women’s Law Center and a former commissioner of the U.S. Commission on Civil Rights. “The whole notion that the federal government should somehow delay due process for students, because of the coronavirus pandemic is just a complete ruse.”
  • The proposal has been cheered by advocates for the accused, as well as conservatives and some civil liberties groups, who urged the guidance from the Obama administration allowed schools to steamroll due process rights of the accused.
  • The release of the final Title IX rule comes as the Trump administration runs up against a potential government wide deadline to publish regulations so that they will be shielded from a fast track reversal tool that Democrats could use if they win the White House and control of Congress in the Fall.
  • Lawsuits challenging the rule are likely from survivor advocates, who sued DeVos over a temporary set of guidelines the department issued after scrapping the Obama-era policy. A draft of the DeVos proposed rule drew more than 124,000 comments, including a wave of personal attacks aimed at the secretary.
  • “All this as students struggle to find housing, keep up with online classes, and pay rent as the unemployment rate soars,” said Sage Carson, the manager of Know Your IX, a victim’s advocacy group. “What these students need is support, not another attack from DeVos and Trump.”
  • The National Women’s Law Center is reviewing the more than 2,000-page rule and says one central argument to challenge the rule is that it is in violation of the Administrative Procedures Act. “The administration in promulgating this rule ignored the evidence that demonstrated the ways that it would harm survivors of sexual harassment and sexual violence,” said Emily Martin, NWLC vice president for education and workplace justice.
  • House Speaker Nance Pelosi slammed the rule as “callous, cruel and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.” Congressional Republicans, meanwhile, praised DeVos’ final regulation. Rep. Virginia Foxx, the top Republican on the House Education and Labor Committee, alluded to Pelosi’s defense last week of former vice president Joe Biden against allegations of sexual assault by a former staffer, Tara Reade. Biden denies the allegations.
  • Lamar Alexander, the chair of the Senate HELP Committee, said that the new policy “respects and supports victims and preserves due process rights for both the victim and the accused.”

DeVos had reportedly planned to release these new guidelines late last year but they had to postpone because of the overwhelming number of comments they received in opposition to the proposal – more than 100,000 comments in total. But it is not like the new timing benefits students, despite the claim that that is who this is supposed to ultimately benefit.

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