The Department of Education on Friday proposed new rules for dealing with sexual harassment and assault on college campuses that would bolster the rights of those accused of wrongdoing.
The proposed rules, which now face a public comment period of 60 days before they are enshrined, seek to narrow the definition of sexual misconduct on campuses at a time of national reckoning about sexual abuse.
“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” Education Secretary Betsy DeVos said in a statement. “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.”
The new rules would “adopt a clear definition of sexual harassment actionable under Title IX,” which prohibits discrimination based on sex for schools and programs that receive federal funding, including protection from sexual harassment.
One stipulation would narrow the definition of sexual harassment to mean “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” The new policy would be a departure from the Obama administration’s broader definition of sexual harassment as “unwelcome conduct of a sexual nature.”
The new rules also place an emphasis on “presumption of innocence” and cross-examination through parties’ advisers, according to the Education Department.
“The proposed rule would require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to ‘rape shield’ protections,” Friday’s news release said.
It also “highlights the importance of supportive measures designed to preserve or restore a student’s access to the school’s education program or activity, with or without a formal complaint.” This means offering class schedule changes, counseling and dorm room reassignments, among other things.
The department’s announcement on Friday was certain to be met with outrage from victim advocacy groups. Sexual abuse has been the subject of tremendous attention in the #MeToo era, and allegations of abuse have led to high-profile resignations in entertainment, media and political circles, and were a central factor in last month’s confirmation of Supreme Court Justice Brett Kavanaugh.
“Secretary DeVos’ long-awaited rewrite of Title IX enforcement regulation is worse than we thought,” said a statement from Jess Davidson, the interim executive director for the organization End Rape on Campus.
“It will return schools to a time where rape, assault, and harassment were swept under the rug. These new rules betray the same attitude about assault that we saw from Senate Republicans the last few weeks – disparage and diminish survivors and discourage them from reporting,” she said.
It’s On Us executive director Tracey Vitchers said the results of the proposed rules “would be devastating.”
“The proposed rule changes to Title IX put forward today for public comment by the Department of Education once again demonstrate that Secretary DeVos and her team lack basic empathy for survivors and do not care about campus safety,” Vitchers said in a statement.
However, others applauded the department’s move, saying it took the rights of both parties seriously.
Samantha Harris, a vice president for the Foundation for Individual Rights in Education, said the proposed regulations “make important strides toward ensuring that complaints of sexual misconduct will be neither ignored nor prejudged” and eliminate confusion that has led to “broad definitions of sexual harassment that threaten student and faculty speech” on campuses.
Last year, DeVos announced the department was rescinding Obama-era guidance that pressed colleges to take accusations of sexual misconduct more seriously and provided guidelines for investigations and hearings. DeVos argued the older guidance denied proper due process to individuals who had been accused.
“The truth is that the system established by the prior administration has failed too many students. Survivors, victims of a lack of due process and campus administrators have all told me that the current approach does a disservice to everyone involved,” DeVos said during a speech in September 2017, when she announced the department would be reviewing the policy.
In her statement on Friday, DeVos echoed that sentiment: “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.”