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Betsy DeVos Proposes New Title IX Rules Favoring the Accused

Prachi Gupta Nov 17, 2018. 8 comments

On Friday, Education Secretary Betsy DeVos proposed a new set of Title IX guidelines that, if enacted, will weaken protections for students who face gender-based discrimination, sexual harassment, and sexual assault, shifting more power to the accused and limiting the institution’s responsibility to investigate claims of abuse.

Previous drafts of the 150-page document, released on Friday, have indicated that DeVos plans to roll-back the rights of survivors. In July 2017, DeVos met with men’s rights activists to gain their input on the current reporting process after rescinded the Obama-era guidelines. “The proposed regulation is grounded in core American principles of due process and the rule of law,” the Education Department said in a summary of its proposal. “It seeks to produce more reliable outcomes, thereby encouraging more students to turn to their schools for support in the wake of sexual harassment and reducing the risk of improperly punishing students.”

The guidelines are designed to enforce Title IX, the 1972 federal law that prohibits sex-based discrimination at publicly-funded schools, including both grade school and higher education. The proposed regulation will open for public comment for 60 days before it can be finalized and enforced.

The proposed rules limit what constitutes harassment, as well as the school’s responsibility in investigating claims, and tilt the investigation process in favor of the accused. The proposed guidelines implement a stricter definition of what qualifies as sexual harassment. “They’re saying that schools don’t have to respond, essentially, until harassment reaches a level that it denies the students equal access to education, which means that they will be able to ignore lots of incidences of harassment that may not reach that level,” Neena Chaudhry, General Counsel and Senior Advisor of Education at the National Women’s Law Center, told Jezebel. The department is adopting a standard using a 1999 Supreme Court ruling that determined schools are liable to pay for monetary damages only when harassment is “so severe, pervasive and objectively offensive that it denies its victims the equal access to education.”

“That was a very specific context and it is not appropriate to import that context here, because it is going to allow schools to ignore a lot of cases of sexual harassment,” Chaudhry said.

In addition to raising the bar for what constitutes harassment, the proposed rules also limit the school’s obligation to respond to harassment that occurs off-campus, even in buildings owned by the school or events sponsored by the school. Under the changes, the harassment would have to occur within an education program or activity. “There could be a party completely off-campus,” Chaudhry said, “and this happens all the time, unfortunately, where a student is raped at an off-campus party and a student has to see her assailant in class, on campus every day. Schools have had obligations for a long time now to address that,” she said, “and to investigate to the best of their ability what happened.” Under the proposed guidelines, “their intent seems to be to limit the amount of off-campus harassment that schools have to address even when it affects the .educational environment.”

Though one in five women in college experience assault, only about 20 percent ever come forward. The proposed guidelines will make it even harder to come forward by requiring that colleges only investigate complaints reported to “an official with authority to take corrective action.” Additionally, the Washington Post reports that the department “will not consider a school to be skirting its responsibility to investigate an accusation if instead it offers accusers accommodations such as a schedule change, a no-contact order or new housing.”

Schools will decide whether they require a “preponderance of the evidence” or the higher bar of “clear and convincing evidence,” and must begin with a presumption of innocence. “Now they are really tilting the scales in favor of accused students,” she said. The proposed guidelines would also allowing the accused to cross-examine the accuser through an advisor and allow schools to ask survivors to go trough mediation or conflict resolution, potentially re-traumatizing survivors and discouraging them from filing a claim.

“That had been previously prohibited because sexual assault is not a conflict to be resolved,” Chaudhry said.

The proposals also remove an obligation for schools to apply for a religious exemption, and may instead just implement the exemption without distinct approval. “A number of schools have sought exemptions because they don’t feel they need to protect LGBTQ students or pregnant or parenting students,” Chaudhry said, calling the exemption roll-back “a huge loophole” that will enable discrimination.

“These proposed rules take us backwards to a time when sexual assault and harassment were swept under the rug and schools could just ignore it routinely,” Chaudhry said. “We’ve made so much progress in this #MeToo era with people all over the country speaking up and coming forward. It would be devastating to students to go backwards in this way.”

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