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Little Clarity in Sexual Harassment Rule Changes

Emil Photo Again Edited 61b7dabb61239

Poor Betsy DeVos. Three words that an accountant would never use for the woman connected to the Amway fortune, whose only real knowledge of education was being an anti-public school/pro-voucher advocate.

But now, here she is, thrust into the role of nation’s top education official in a bit of White affirmative action by Donald Trump, another recipient of the same.

That is to say they’re both unqualified, unworthy of their respective jobs, and in a bit over their heads.

So as we contemplate DeVos’ rewrite proposals of the rules governing sexual harassment in higher ed — what could be DeVos’ most significant action to date — we have to be thankful that she’s only education secretary.

DeVos only gets to show her unworthiness every now and then, and just in one area.

Emil GuillermoEmil Guillermo

Trump constantly tests us all, even his supporters with extreme views contrary to democracy’s  norms.

The Trump Standard

Take any of the latest headlines like defending the the Saudi Prince Mohammed bin Salman in the killing of Washington Post journalist Jamal Khashoggi. Contradicting the CIA assessment and saying of the Prince’s involvement, “Maybe he did, maybe he didn’t,” doesn’t quite cut it from the man in a position seen as the moral leader of the secular world. Trump’s go to response? According to Trump, it’s poor Khashoggi, but look at how great the gas prices are, because the Saudis are our allies!

But why dwell on that? There’s always more.

–Dumping Attorney General Jeff Sessions and naming a non-confirmed replacement, Matthew Whitaker, who also happens to be a vocal critic of the Mueller/Russia investigation of Trump? Already a group of senators have filed suit over the move.

–The continued fear-mongering and xenophobia on immigration along the southern border. Trump turns the humanitarian situation into a warlike stance and overacts by sending in the military. But he justifies it by saying the caravan heading toward the border is full of “bad hombres.”

–To keep the pressure on immigration, Trump changes the asylum rules, only to be stopped by the Federal Judge John S. Tigar from 9th Circuit court. Trump, known to disparage judges, goes after Tigar and calls him an Obama appointee. It garners the wrath of normally reticent Supreme Court Justice John Roberts who reminds Trump in a strongly worded statement defending the independence of the judiciary reminding Trump that there are no Obama judges or Bush judges.

Trump just doesn’t understand checks and balances as a man who governs. Only as a man who does business. And that’s really not what governing is about.

So that’s why his solutions to public matters usually deal with what’s good for Trump (it appeals to a base that will stick with him no matter what). And then there’s the matter of values. It’s about profits over people all the time. Humanity? Empathy? What’s that? This is the man who shows up to the wildfires in California that have claimed more than 84 lives, with another 1,000 missing and he calls Paradise, the town, by another “p” word, “Pleasure.”

He just doesn’t really care like a president should.

And despite all the turmoil on his plate, Trump still got in a few rounds of golf on Thanksgiving day.

It’s important to note all this, because the leader sets the standard for his loyal cabinet members. And a leader who doesn’t read sets a pretty low bar especially in education.

DeVos’ Sexual Harassment Revisions

It all should be good news for ­­­­­­­­ Betsy DeVos.

All she has to do in her job is please her friends and political patrons. First, she protected for-profit colleges run by her friends and allies when it comes to loan defaults and tax breaks, and then last week she reinstated the Accrediting Council for Independent Colleges and Schools, known as the ACICS. The Obama administration wanted it shut down as the gatekeeper between private for-profit schools and the honeypot of federal financial aid.

DeVos just restored it. What more can a loyal conservative do for her friends?

But nothing compares with her new rules on sexual harassment.

If you’ve read all the right-wing editorials over the last four years or so, all conservatives really wanted during her tenure as education secretary was for her to fix the rules that govern sexual harassment and assault in higher ed.

Conservatives shouted for “due process” for the accused, usually white males, who they felt were being railroaded by ad hoc “kangaroo courts.”

­­­­So the revisions are important. You just don’t see much comment about them under the cloud of daily Trumpisms.

Just wait till the next big sexual harassment story.

Here’s what the proposed rules do more than anything. It makes the process more like a formal court.

That’s good for people who cried “due process.”

But it does nothing to protect the traumatized victim, who for their sake was often coddled through the current process. While those charged with harassment could always hire an attorney to represent them, there was no cross-examination allowed of witnesses. Now there is. But it also allows for someone to hire a pit-bull lawyer to attack and intimidate a witness. No more coddling. When a year’s tuition is equal to a lawyer’s fee, this is a Trump game now.

The new revisions do make it optional for the school to adopt either the low “preponderance of evidence” standard, or the higher “clear and convincing” level. Most schools adopted the lower standard. If they go to a higher standard, then it’s practically like a criminal court.

The revisions also limit the circumstances under which a claim can be made. A school needs “actual knowledge” of any allegation. Does that mean facts, as Trump would define them? The incident also has to occur with a school’s own programs or activities. Does that mean off-campus actions in a private apartment or a date in a public restaurant are no longer in the school’s purview? Or is any activity by a student while enrolled at school a “school activity”?

How it’s defined is critical, but clearly the intent is to limit what is the school’s problem. And that’s troublesome for some advocates.

“Narrowing the scope of what constitutes sexual harassment risks leaving serious misconduct unaddressed, especially at schools that adopt the higher evidentiary standard,” said Suzanne Taylor, the University of California’s interim Title IX Coordinator in a statement. She says the new proposed rules will “seriously impede students’ abilities to obtain redress for wrongdoing.”

But this has been my problem with the procedures now. To protect the victim, the accused is often left in the dark. And while this is not a criminal court, the discipline that can be meted out, which ranges from suspension to expulsion, still makes a tremendous impact financially and emotionally. The end result is that everyone is a victim. Justice?

There is only one place for justice and that is to let  law enforcement handle it.  If the police aren’t called in to investigate and the District Attorney chooses not to prosecute, then how fair is an “in-house” disciplinary proceeding that can levy significant punishment.

And that’s just a few of what I see are the problem with the revisions, which still go through a period of public comment before they become law.

DeVos clearly covers her political bases with conservatives call for “due process.” But in an attempt to make current guidelines more in line with the law, there are still too many ways both victim and the accused can feel victimized by the system.

I’d say DeVos better try again. Unless she’s one of the cabinet secretaries Trump is looking to dump.

If she doesn’t, U.S. News’ college rankings should add a new list for parents of prospective students and students themselves. What’s your school’s sexual harassment policy ranking. A 100? Will a notorious party school be in the 20s or low teens? Is the evidentiary standard high or low? Do defense attorneys win or lose cases? Will a student be protected from sexual bullies or predators? Or will a student be free to do as they please without reprimand?

Under the semi-optional DeVos rule revisions, there’s little clarity. Lots of questions. A lot at stake.

Emil Guillermo is a veteran journalist and commentator. He writes for the Asian American Legal Defense and Education Fund. You can follow him on Twitter @emilamok

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