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Education Secretary Betsy DeVos proposed a major overhaul of how colleges and universities handle complaints of sexual misconduct, adding protections to students accused of harassment and harassment, and narrowing the cases schools should investigate.
His plan would reduce the important rules of the Obama administration by adding mandates that could reshape the school's disciplinary systems that schools have developed over the past decade.
Under the new plan proposed on Friday, colleges would have to investigate complaints only if the alleged incident occurred on campus or in other areas supervised by the school, and only if it was reported to certain officials. In contrast, current rules require colleges to examine all students' complaints, regardless of location or how they caught the attention of the school.
It adds several provisions supported by groups representing students accused of sexual misconduct. Chief among them, says accused students should be able to question their accusers, although this is done through a representative to avoid personal confrontations.
The proposal effectively tells schools how to enforce the 1972 Title IX law that prohibits sex-based discrimination in schools receiving federal money. It applies not only to colleges and universities, but also to primary and secondary schools.
The Department of Education says the proposal ensures justice for students on both sides of the charges while giving schools the flexibility to support victims even if they do not file a formal complaint or request an investigation.
"We can, and must, condemn sexual violence and punish those who practice it, while ensuring a fair grievance process," DeVos said in a statement. "These are not mutually exclusive ideas. They are the essence of how Americans understand that justice works."
For years, schools have had a series of letters issued by the Obama administration instructing them on how to respond to complaints. False steps could bring in federal investigations that often last for years, with penalties as high as the total loss of federal funding.
Victim advocacy groups say that Obama's rules forced schools to stop sweeping the issue under the rug, while supporters of accused students said that this unbalanced the balance in favor of the accusers. Some colleges complained that the rules were too complex and could be overly heavy.
DeVos echoed critics of the rules when she rescinded two guidance letters in September 2017, stating that "the rule-by-letter era" was over. Instead, she published the 150-page proposal on Friday, which will undergo a 60-day public comment process before it can be finalized.
Legal experts say this can drastically reduce the number of complaints being investigated by schools. Saunie Schuster, a lawyer who advises several colleges, says the vast majority of complaints occur off-campus and no longer need to be addressed by schools, although colleges may still go beyond the minimum requirements.
The DeVos plan should also reduce actions taken by the Department of Education that may penalize schools for failing to defend Title IX. The bill raises the bar to prove this failure, saying schools should be "deliberately indifferent" to be legally held accountable.
As of Friday, the Department of Education reported that it was investigating 387 complaints involving sexual harassment or violence at the university level, along with 296 in primary and secondary schools.
Catherine Lhamon, who led the Department of Education's civil rights division under Obama and helped develop existing rules, told The Associated Press that the new proposal is "devastating" and would bring schools back to a "very dark period."
"It would encourage schools to stick their heads in the sand," she said. "It promises schools that if they follow specific, minimal steps, they can not be held responsible for violating Title IX, and that will define a surprisingly low set of expectations."
Rep. Bobby Scott of Virginia, the leading democrat party on education and the workforce committee, asked DeVos to reject the proposal, which he called "a detrimental setback to our efforts to prevent harassment and sexual assault on campus" .
Other opponents said they feared that fewer victims would report aggressions under the new rules, and that they would simply drop out of school.
But proponents say the proposal does a better job by offering equal treatment to all students. They praised the rules by saying that both sides should be able to review the evidence collected by the school, and that both sides would have the same option of bringing a lawyer or other counselor to on-campus audiences.
"I do not think providing due process for accused students and taking the allegations of the victims seriously – and judging them fairly – is inconsistent," said Samantha Harris, vice president of procedural advocacy at the Rights Foundation Individuals in Education. group of civil liberties in Philadelphia.
Families advocating Campus Equality, a group that supports accused students, saw the proposal as a victory, especially their demand for schools to weigh cases in a live cross-examination hearing.
"You do not want interviewees or claimants to grill each other, I do not think it's appropriate," said Cynthia Garrett, co-chair of the group. "But having a defender who can do it will go a lot further to help decision makers achieve accurate results."
Some colleges – including the University of Wisconsin, Yale University and the University of California system – issued statements on Friday saying they will remain committed to preventing sexual violence regardless of any changes.
Among other changes, the proposal restricts what constitutes sexual harassment. While the earlier guidance defined it as "unwanted conduct of a sexual nature," the new proposal defines it as unwanted sexual conduct that is so severe that it effectively denies the victim's access to school or programs.
It allows schools to use a higher standard of proof in weighing cases. Obama's guidance has told schools to use a "preponderance of evidence" standard, meaning that the claim is "more likely than not" true. The new proposal would allow for a "clear and convincing" pattern, which means that the claim is highly likely.
Even if victims do not file a formal complaint, the proposal encourages schools to offer a range of measures to help them continue their studies, including counseling, changes in class schedule, dorm reassignments, and contactless requests for the accused Of damaging them.
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Department of Education: https://tinyurl.com/y7q3dzss
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Follow Collin Binkley on Twitter at https://twitter.com/cbinkley
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