The Trump administration released new guidelines Wednesday for how universities and K-12 schools 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 and vice versa during live hearings, although it must be done through a lawyer or representative.
The changes, described in a more than 2,000-page document, go into effect on Aug. 14.
They come after the Education Department “heard from too many students whose careers were tarnished by administrators without any resemblance to due process,” Kenneth Marcus, the agency’s assistant secretary of civil rights, told reporters. “This must stop.”
The new rules 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, using the Supreme Court’s definition of harassment. The 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.” An action could also be considered harassment if “reasonable” people would agree.
Schools will be able to choose between two evidentiary standards for whether a student violated a code of conduct policy — either by a preponderance of the evidence, or by clear and convincing evidence — but it must be the same for both student and employee cases. Previous department rules restricted schools to only go by the preponderance of the evidence standard, often described as 51 percent certainty that the facts are true.
Advocates for sexual assault victims said Wednesday they’re already preparing to challenge the new regulations in court. Shiwali Patel, an attorney at the National Women’s Law Center, a Washington-based nonprofit, said that “we have a lot of good, sound reason to do so.”
The Education Department declined to comment on potential legal disputes, and a senior official said the agency’s focus will be on helping the public understand the changes.
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.”
Devos said Wednesday that the new rules carry the full force of the law. Previously, “too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” she said.
Sen. Lamar Alexander, R-Tenn., chairman of the Senate Health, Education, Labor and Pensions Committee, said in a statement that he supports that the rule “ensures victims get the support they need to change classes or dorms if they allege they have been sexually assaulted or sexually harassed, and the rule ensures the victim and the accused get a fair hearing to resolve such allegations.”
But groups advocating for sexual assault victims are fearful 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.
Sage Carson, the manager of Know Your IX, a project combating sexual violence at schools and on college campuses, said the final rules would only make it harder for accusers to report sexual violence and creates a “biased reporting process” that favors their assailants.
“All this as students struggle to find housing, keep up with online classes, and pay rent as the unemployment rate soars,” Carson said in a statement.
Vanita Gupta, a former Department of Justice official under Obama and CEO of The Leadership Conference on Civil and Human Rights, called the final rule “an abomination.” “This is all part of this administration’s ongoing attempts to undermine the civil rights of students,” she added.
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.
Following the public comment period, there are other changes in the final rules from the agency’s earlier proposal.
For instance, allegations of stalking, domestic violence and dating violence must be investigated.
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. But that doesn’t extend to study abroad programs.
In addition, cross-examination hearings can be held virtually and the opposing parties can be in separate rooms while they take place. Live hearings are also optional in K-12 schools, although parties must be granted the opportunity to submit written, relevant questions to the other party or witnesses with limited follow-up questions.
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.
Joe Cohn, the group’s legislative and policy director, said the DeVos rules have created a “sensible and balanced document” that follows the definition of harassment under the Supreme Court and “goes out of its way to make sure the complainants, regardless of the outcome of adjudications, are offered support measures.”
Meanwhile, there have 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. It revised its calculations, and now expects that the regulations will cost schools between $48.6 and $62.2 million over 10 years.