Education Dept. Proposes Enhanced Protection For Students Accused Of Sexual Assault

Nov 16, 2018
Originally published on November 26, 2018 8:43 am

Education Secretary Betsy DeVos announced sweeping rules on how colleges handle cases of sexual assault and harassment that she says will fix a "failed" and "shameful" system that has been unfair to accused students. In what the administration is calling a "historic process," the proposed rules aim to significantly enhance legal protections for the accused and reflect a sentiment expressed by President Trump that men are unfairly being presumed guilty. More than a year in the making, the rules replace Obama-era policies on how to implement Title IX, the law barring gender discrimination in schools that get federal funding.

The new rules are drawing both applause and anger.

Among the most significant changes is that schools can make it harder to prove allegations by raising the level of proof needed. Instead of requiring only a "preponderance of the evidence," as the Obama administration had directed, schools could demand "clear and convincing evidence." And many schools may well be forced to raise the bar, since the regulations also require that the standard for students be the same as that used for faculty and staff.

The rules do not go into effect until they go through a public comment period, which could be a long process and could result in more changes.

Under the new regulations, students also would be guaranteed the right to cross-examine each other. That was discouraged under the Obama administration. To minimize retraumatizing victims, the regulations would bar student-to-student confrontations, requiring instead that questions be asked by a third party, such as the accused student's attorney.

"We expect that the proposed regulations will be a dramatic improvement," says Samantha Harris, director of policy research at the Foundation for Individual Rights in Education. She applauds the administration for "recognizing that schools must provide meaningful procedural protections to accused students when adjudicating such serious offenses."

But victims' advocates lambasted the new rules, saying they will have a chilling effect on reporting, as survivors will not want to subject themselves to such a difficult process.

"It demonstrates Betsy DeVos and the Trump administration share the same attitude about assault that we saw from Senate Republicans during the Kavanaugh hearing — disparage and diminish survivors and discourage them from reporting," says Jess Davidson of the group End Rape On Campus.

Combined with other proposed changes, she says, this would mark a return to a time when "rape, assault and harassment were swept under the rug." Her group already is organizing protests.

The Trump administration proposes "reasonably prompt" time frames for investigations but does not specify how long they should take, as the Obama administration had, and they would allow informal dispute resolutions that were previously banned, including mediation.

And while the new regulations encourage schools to offer supportive measures to a victim, such as a no-contact order, they also would bar any such measures that would "burden" or punish an accused student while an investigation is pending or if he or she is found to be not at fault. For example, a no-contact order would have to apply mutually to the accuser and the accused. The Obama administration directed schools to "minimize the burden on the complainant."

Critics also complain that the new regulations let schools off the hook in too many cases. The administration says it wants to make sure "only objectively serious behavior is actionable." Under the new regulations, colleges would only have to investigate the most egregious cases of sexual harassment. The Obama-era definition of "unwelcome conduct of a sexual nature" would be significantly narrowed to include only sexual misconduct that is "so severe, pervasive and objectively offensive" that it denies a person access to a school's education program or activity.

Also, colleges would only have to investigate accusations that are reported directly to designated administrators. Schools might have no obligation to investigate if a student tells a coach or a resident adviser, for example. And even if directly reported, the schools would not have to investigate every complaint. The regulations say a school would only have to investigate if the alleged victim wants it to.

For some colleges, the new rules are bringing at least some sense of relief. Many welcome the new clarity — so they know their obligations and can limit their risk of ending up under government investigation. But as the new regulations would make the college process a little more court-like with lots of procedural requirements, that also makes things more onerous for schools.

Unlike the Obama-era guidelines, when DeVos' new rules are implemented, they will have the force of law without having been approved by Congress.

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STEVE INSKEEP, HOST:

The Trump administration says it is changing the way that colleges should handle cases of sexual assault and harassment. Education Secretary Betsy DeVos is changing rules from President Obama's time. She says the old way was unfair to accused students and others. NPR's Tovia Smith has been following the story. Hi, Tovia.

TOVIA SMITH, BYLINE: Good morning.

INSKEEP: What's the goal of this change?

SMITH: Well, what the secretary has said she wants to do is fix what she calls a failed system, one that's shamefully unfair, she says, to the accused. And this is of course similar to what we've heard from President Trump himself, especially after the Kavanaugh hearings, that guys are being unfairly presumed guilty. So now Secretary DeVos says these new regulations would be historic. They would address due process, in this context, for the first time. And indeed, her changes really do beef up protections for accused students.

INSKEEP: I guess we should explain what we're talking about here. This isn't a trial. It's not a criminal proceeding, but colleges may have their own process for dealing with these kinds of allegations, right?

SMITH: That's right. And one of the changes that would go into effect if implemented would be that schools could raise the level of evidence that is needed to prove an allegation, making it effectively harder to find someone at fault. Instead of preponderance of evidence, as it was under Obama, it would be clear and convincing evidence. Another big change, cross-examination, which was discouraged under Obama, would be required. This would not be direct, like, student-to-student confrontation. Questions would have to go through a third party. But still, some applaud this as due process. Others say that cross-examining even this way would be re-traumatizing and would discourage other people from filing complaints.

INSKEEP: That phraseology is important of course because if it were a criminal trial, you would want proof beyond a reasonable doubt. Preponderance of evidence was seen as something well-short of that. I guess clear and convincing evidence is getting closer to wanting to be beyond a reasonable doubt before you would punish somebody. Is that right?

SMITH: A middle ground. But yes, higher standard.

INSKEEP: OK. So the regulations also touch on what schools have to investigate. How does that change?

SMITH: Well, first off, it narrows the definition of sexual harassment. Instead of any unwelcome conduct, it has to be, quote, "so severe and pervasive and objectively offensive that it gets in the way of a person getting access to education." Also, colleges would only have to investigate accusations that are reported directly to some designated administrators. If not, the school would be off the hook, so to speak. And lastly, the regulations make clear that if a victim doesn't want an investigation, in most cases, the school doesn't have to launch one.

INSKEEP: How are people responding to these rules changes?

SMITH: Well, on the one hand, those who've been pushing for more due process see it as a big step forward. As one defense attorney told me, he hopes it'll restore sanity to the process. On the other hand, victims advocates are furious. One called the new plan disgraceful. She said it would enable schools to go back to sweeping misconduct under the rug and letting offenders get away with it.

INSKEEP: Do universities have to do what the administration just said?

SMITH: They absolutely do. These new regulations, if enacted, would have the force of law. But important to note, they don't go into effect until they go through a public comment period, which could be a long process and could result in more changes.

INSKEEP: Tovia, thanks for the update - really appreciate it.

SMITH: Thanks, Steve.

INSKEEP: That's NPR's Tovia Smith on new regulations announced by the Trump administration on the way colleges should handle cases of sexual assault and harassment.

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