ED proposes long-awaited sexual assault rules

The U.S. Education Department on Friday released its plan to overhaul the way colleges handle sexual harassment and assault allegations, providing more protection to accused students.

Under the ED plan, colleges would investigate sexual assault and harassment only if the alleged misconduct was reported to certain campus officials, such as the school’s Title IX coordinator, and only if it occurred on campus or at areas, events and activities overseen by the college. It also would narrow the definition of sexual harassment and allow students accused of misconduct to cross-examine accusers in campus hearings.

The proposed regulations would replace guidance created under President Barack Obama, which U.S. Education Secretary Betsy DeVos rescinded last year.

The new rules are intended to create “clear policies and fair processes that every student can rely on,” DeVos said in a summary of the proposed rules.

“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” she said. “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.”

A new process

The department’s proposed rules fall under federal law known as Title IX, which prohibits discrimination on the basis of sex in education programs or activities that receive federal funding. DeVos and her supporters, as well as some in the education sector, criticized the Obama-era guidelines as too cumbersome, confusing and lacking in due process.

“It is our goal with this proposed rule to ensure that Title IX grievance proceedings become more transparent, consistent, and reliable in their processes and outcomes,” DeVos said. “Far too many students have been forced to go to court to ensure their rights are protected because the department has not set out legally binding rules that hold schools accountable for responding to allegations of sexual harassment in a supportive, fair manner.”

The proposed regulations — which also would apply to K-12 schools — describe what constitutes sexual harassment or assault for the purpose of Title IX enforcement, what triggers a school’s legal obligation to respond to allegations and how a school must respond. Colleges can offer supportive measures to accusers even if they do not file a formal complaint.

For colleges and universities, a final decision regarding a complaint must be made at a hearing. Cross-examination can occur, but it must be conducted by advisers or attorneys, with no personal confrontation between the complainant and respondent.

The rule will be open for public comment for 60 days from the date of publication in the Federal Register.

GOP support

Rep. Virginia Foxx (R-North Carolina), the outgoing chair of the House Committee on Education and the Workforce, issued a statement supporting the proposed rules, saying the previous process “did serious damage with its arbitrary Title IX guidance.”

“Today’s step toward creating reliable and fair procedures for addressing sexual discrimination, harassment, and assault for individuals at every level of education is both necessary and crucial,” Foxx said.

U.S. Sen. Lamar Alexander (R-Tenn.), chair of the Senate’s education committee, said the proposed rules “bring much needed clarity to the federal rules helping colleges protect the safety and rights of students,” and the approach “seems to balance fairness and support for survivors.”

The rule-making process also will allow the public to comment on the proposals, Alexander said.

“Under the previous administration, a single employee at the Education Department was issuing edicts to 6,000 colleges and universities on how to handle the complex and sensitive problem of sexual assault,” he said.

Criticism from the field

Some education and civil rights advocates contend that the proposed rules would do less to protect victims in schools and colleges. The National Education Association (NEA) said “DeVos seeks to turn Title IX on its head.”

“The proposed rule, if adopted, will mean that fewer survivors will report their assaults and harassment, schools will be more dangerous, and more students will be denied their legal right to equal access to education after experiencing assault and harassment,” said NEA President Lily Eskelsen García.

More than one in five women and nearly one in 18 men are sexually assaulted in college, according to the Lawyers’ Committee for Civil Rights, a nonpartisan nonprofit. Research shows that only 12 percent of college survivors and just 2 percent of girls between the ages of 14 to 18 years old report sexual assault to their schools or to their police.

Moreover, marginalized students are less likely to report incidents of sexual harassment or violence, including LGBTQ students and those with disabilities, the group said.

“We fully support due process for those accused of sexual harassment and assault. But by tilting investigations in favor of those accused of committing sexual violence, the rule is likely to discourage survivors from coming forward and receiving the support that they need,” said Brenda Shum, director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law.

About the Author

Matthew Dembicki
is editor of Community College Daily.