New Campus Sexual Assault Rules Bolster Rights of Accused, Protections for Schools

May 6, 2020 by Dan McCue
Education Secretary Betsy DeVos speaks about the coronavirus in the James Brady Press Briefing Room in Washington. (AP Photo/Alex Brandon, File)

WASHINGTON – The Education Department unveiled new campus sexual assault rules on Wednesday that significantly reduce the legal liabilities for schools, narrow the scope of cases educators will be required to investigate and bolster the rights of those accused of such assualts.

“Today we release a final rule that recognizes we can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process,” Education Secretary Betsy DeVos said as she announced the changes.

“This empowers survivors with more tools than ever before,” she promised.

But the new guidelines drew a sharp rebuke on Capitol Hill, where House Speaker Nancy Pelosi described them as “callous, cruel and dangerous.”

The department’s action, she said, threatens to silence survivors and “endanger vulnerable students in the middle of a public health crisis.” 

The changes announced Wednesday modify Title IX, a 1972 law prohibiting “discrimination based on sex in education programs or activities that receive Federal financial assistance.” 

They are intended to replace tougher Obama administration policies promulgated under Title IX that DeVos struck down because she believed they compelled schools to deny the rights of accused students.

Under the new rules, the definition of sexual harassment is narrowed to include only misconduct that is “so severe, pervasive, and objectively offensive” that it effectively denies the victim access to the school’s education programs.

The rules also add dating violence, domestic violence and stalking to the definition of sexual harassment.

At the same time, the new policy adds measures intended to ensure students accused of sexual misconduct are judged fairly during campus disciplinary hearings.

The main change is a requirement that colleges and universities allow students on both sides of a case to question one another during the proceedings.

The questioning would be done through representatives to avoid direct confrontation, but opponents have said it’s a cruel policy that forces victims to relive the trauma of sexual violence.

Students on both sides must be given equal access to evidence gathered in the school’s investigation under the new rules, and be allowed to bring an adviser, which can be a lawyer, to the proceedings.

“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” DeVos said in a statement.

“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. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues,” she said

The new regulations will take effect in August.

“Campus sexual assault is an epidemic in America, with one in four women experiencing harassment or abuse on college campuses and the coronavirus crisis creating new threats to women’s safety and challenges to seeking justice,” Speaker Pelosi said in a written statement. “Yet, Secretary DeVos and the Trump Administration have only accelerated their wanton war to destroy Title IX’s critical protections for students and holding schools accountable.

“That the Department of Education has spent its time finalizing this out-of-touch rule rolling back decades of progress instead of helping students and educators weather the coronavirus crisis highlights the staggering depths of this Administration’s contempt for survivor justice and campus safety,” she said.

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