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New Department of Education Sexual Assault Investigation Rules Spark Controversy

The Department of Education on Wednesday issued much-awaited final regulations on how campuses must investigate sexual assault allegations, a development that generated criticism for its timing and content.

Betsy DeVosBetsy DeVos

Secretary of Education Betsy DeVos said the final regulations under Title IX — which prohibits sex discrimination in federally funded educational institutions — were issued after considering various stakeholder comments and as many as 124,000 public comments since the proposed guidelines were issued in November 2018. In September 2017, DeVos rescinded the Obama administration’s policy guidance on sexual assault in educational institutions. Now, colleges and universities have to implement DeVos’ final rules by Aug. 14.

DeVos’ Wednesday announcement comes on the heels of several calls from academic groups, senators and state attorneys general to delay issuing the guidelines because of campus shutdowns due to the coronavirus pandemic. Many university groups called for a delay also because they were critical of the department’s November 2018 proposed guidelines, which they said the final rules will closely mirror.

Fatima Goss GravesFatima Goss Graves

According to the final regulations, the definition of sexual harassment includes sexual assault, dating violence, domestic violence and stalking. Among other requirements, the regulations specify a legal framework under which campus investigations of harassment must occur. Universities must hold a live hearing — in some cases a virtually live hearing will be allowed — where accusers and the accused submit, cross-examine and challenge evidence. Another requirement is that schools offer an equal right of appeal for both parties to a Title IX proceeding. The rules hold colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities. A full summary of the final regulations is available here. And here is what the department says is a comparison of the proposed rules versus the final rules.

“This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process,” said DeVos in a statement.

One group, the Independent Women’s Forum, called the new rules “fair and balanced.”

Not many agree with the new rules and, by press time, at least two lawsuits have been promised. As Brett Sokolow, president of the Association of Title IX Administrators tweeted after DeVos’ announcement: “And, the litigation flag is flying already. Ink not dry yet on regs [regulations].”

Fatima Goss Graves, president and CEO of the National Women’s Law Center, doesn’t believe the final rules are fair, and like many critics, she believes they unduly favor the accused. She said her organization would fight the new regulations in court.

“We won’t sit by while this administration continuously attacks our civil rights. We are going to court to advocate for the rights of all students to learn in safe, respectful, and supportive environments,” Goss Graves tweeted. “And 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 in a statement. “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.”

Several other rules will end up indirectly favoring the accused and acting as a deterrent to reporting sexual misconduct and assault, critics said. For example, the “live hearing” requirement of a sexual harassment investigation is deeply troubling, those opposed to the department’s final rules said.

“One of the most significant concerns we expressed and continue to have with the rule is the unintended consequences of requiring a live hearing with direct cross examination by counsel as it will likely discourage reporting of incidents of campus sexual misconduct,” said Peter McPherson, president of the Association of Public & Land Grant Universities (APLU), in a statement. “Some will worry about an anguish-inducing process that includes requiring them to face direct questioning by respondents’ aggressive counsel in a live hearing courtroom-like setting.”

The provision that cross examination is part of universities’ courtroom-like proceedings will be another deterrent, say many critics.

Rep. Barbara Lee (D-CA) said DeVos needs to resign for including such rules. “No one should have to be cross-examined by their rapist,” Lee tweeted. “This #TitleIX rule will punish and traumatize survivors around the country.”

The American Council on Education (ACE) too said it raised this point earlier with the department in January 2019.

“We made a series of recommendations to address the problematic areas of the proposed regulations, such as the proposal to require that live hearings permit direct court-like cross-examination of both the survivor and the accused by the other party’s advisor,” said Dr. Ted Mitchell, ACE’s president, in a statement Wednesday. “This type of highly contentious, hostile and emotionally traumatizing approach has obvious drawbacks.”

Ted MitchellTed Mitchell

Some critics say the final regulations also narrow what constitutes sexual assault, which will again be a deterrent in reporting such incidents.

“Among its sweeping changes, the rule will limit schools’ enforcement obligations to a narrowly defined subset of sexual harassment cases that meet the highest standard of severity, thereby limiting schools’ potential liability and making it less likely that survivors will report incidents of sexual harassment,” said the Center for American Progress in a statement. “It will also allow institutions to employ an unnecessarily demanding burden of proof when investigating Title IX sexual harassment cases, setting an unreasonably high bar for evidence that will be difficult to satisfy in cases and further stack the process against the survivor.”

Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, concurred. The new rules “will silence sexual assault survivors,” tweeted Gupta.

ACE and APLU called the new regulations an example of the department’s micromanagement.

“This package of mandates represents the worst in regulatory overreach,” said Mitchell. “The department’s extraordinary micromanagement is likely to heighten confusion and concern, discourage survivors from coming forward, and impose on every campus in America a ‘one size fits all,’ court-like framework that is antithetical to the campus educational environment and institutional disciplinary processes.”

McPherson said the department had the opportunity to engage with stakeholders for over a year to address their concerns with what were then proposed rules.

“Instead, the final rule largely retains the deeply flawed, federally micromanaged approach to regulating how campuses adjudicate claims of sexual misconduct. Most substantively, the rule will inappropriately make student conduct processes more akin to courtroom proceedings,” said McPherson.

Many of these critics also objected to the new rules being issued at a time when the COVID-19 pandemic is raging. The APLU and its partner higher education associations recently wrote to the department requesting the final rules be delayed. In March and April, three U.S. senators and 18 state attorneys general also urged the department to allow institutions to deal with the pandemic rather than burden them with new and complex regulations.

“The Department of Education is not living in the real world,” said Mitchell on Wednesday. “As a result of the pandemic, virtually every college and university in the country is closed. Choosing this moment to impose the most complex and challenging regulations the agency has ever issued reflects appallingly poor judgment.”

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