Education Secretary Betsy DeVos unveiled sweeping changes Wednesday to campus sexual misconduct rules that would bolster the rights of the accused and give colleges more flexibility in how they handle Title IX cases.
The long-awaited rules make key changes to former guidelines from the Obama administration, including a tighter definition of sexual misconduct, reduced responsibility for colleges to investigate complaints, and the right for advisors on all sides to cross-examine those involved.
DeVos has said the revisions are aimed at restoring fairness and rebalancing the rights of the accuser and accused in the contentious arena of campus sexual assault. Title IX prohibits sex discrimination in education by schools that receive federal funding.
As the Obama administration cracked down on college sexual assault with tougher rules, more investigations and heavier sanctions against colleges deemed lax on the issue, hundreds of alleged offenders across the nation fought back with lawsuits saying their due process rights were violated in a rush to unfair judgments.
In California, some of those lawsuits have succeeded in forcing public and private campuses to strengthen due process rights for accused students. In one case last year, a state appellate court ruled that “fundamental fairness” required that accused students have a right to a hearing and to cross-examine their accusers. As a result, the University of California, California State University, USC, Occidental College and other campuses have made changes to their Title IX processes.
Mark Hathaway, a Los Angeles attorney who has represented more than 200 accused students, said he has continued to file lawsuits against California campuses alleging they have not fully complied with court directives for meaningful cross examination and other due process protections. He said the new federal regulations would provide more specific instructions and additional pressure on campuses to conduct equitable Title IX proceedings.
“It’s been a long time coming for these protections to become federal regulations,” Hathaway said. “Colleges and universities will have to take a road that will be fair.”
Others, however, sharply criticized the rules and predicted an onslaught of lawsuits that could delay their implementation for months. Title IX experts and advocates for survivors of sexual assault warned that the prospect of an adversarial proceeding similar to a criminal trial, complete with cross-examination, would significantly deter the filing of complaints.
“This will likely cause a very dramatic chilling effect on the willingness of people to come forward and report sexual violence and discrimination,” said Brett Sokolow, president of the Association of Title IX Administrators.
DeVos issued the final rules despite pleas by hundreds of education and advocacy organizations, along with state attorneys general, to wait until the COVID-19 pandemic eases. The Department of Education unveiled its draft proposal in 2018 and received more than 120,000 comments about it as of last year.
In the last two months, colleges and universities have scrambled to send students home, shift to online learning and start planning reopening scenarios, all while grappling with staggering financial hits to their budgets. Many will be hard-pressed to absorb the new rules, adjust their processes and launch the extensive training that will likely be required, Sokolow said.
“Betsy DeVos and the Trump Administration are dead set on making schools more dangerous for everyone — even during a global pandemic,” Fatima Goss Graves, president of the National Women’s Law Center, said in a statement. “We won’t let DeVos succeed in requiring schools to be complicit in harassment, turning Title IX from a law that protects all students into a law that protects abusers and harassers.”
She said her organization would challenge the rules in court. Sokolow said one area of likely litigation would be whether the Dept. of Education had the authority to adopt rules on due process. “There’s going to be a war over that issue,” he said.
The final rules reflected most of those proposed in 2018. They would for the first time require colleges and universities to allow cross-examination during mandatory live hearings in misconduct cases, though parties would not question each other directly.
Both sides would have equal opportunity to present witnesses and access evidence. And the person who makes the ultimate finding could not be the same person who investigated the complaint, addressing widespread criticism that Title IX coordinators often act as prosecutor, judge and jury.
The new rules also would adopt the U.S. Supreme Court’s definition of sexual harassment, which requires conduct to be so severe, pervasive and “objectively offensive” that it effectively denies a person equal access to the school’s education program or activity.
Obama-era guidelines required that the unwelcome sexual conduct be severe or pervasive, rather than both, as the new regulations mandate.
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