If Education Secretary Betsy DeVos has any say, college campuses and K-12 facilities will soon ramp down sexual harassment investigations and offer more rights to the students accused of misconduct, according to proposed regulations released Friday.
Under the proposed Title IX enforcement regulations, schools would only have to launch investigations into properly reported incidents — for example, those reported to a campus Title IX administrator — that were part of campus programs and activities. Required investigations could include incidents that take place in off-campus buildings owned by the school, or incidents that take place during school-sponsored events, but the level of proof needed to substantiate those assault allegations would raise from a “preponderance of evidence” to “clear and convincing evidence.”
The proposal also narrows the definition of sexual harassment to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Under the Obama administration’s guidelines, harassment was defined simply as “unwelcome conduct of a sexual nature.”
“We expect that the proposed regulations will be a dramatic improvement," Samantha Harris, director of policy research at the Foundation for Individual Rights in Education, told NPR. She said the Trump administration is "recognizing that schools must provide meaningful procedural protections to accused students when adjudicating such serious offenses."
Meanwhile, students accused of sexual harassment would be entitled to lawyers and cross-examination, “reducing the risk of improperly punishing students” while offering more due process measures, according to an Education Department summary on the proposal. Schools are still encouraged to offer things like schedule changes, a no-contact order and new housing to accusers, even if they do not file a formal complaint, but under the proposed rules a school would be able to offer these services in place of an investigation.
“Today’s announcement of Title IX rollbacks is the latest in a troubling pattern of Secretary DeVos’ efforts to dismantle the Education Department’s Office for Civil Rights and turn the federal government’s back on students who are suffering, vulnerable or disenfranchised,” said Randi Weingarten, president of the American Federation of Teachers, in a statement.
Under Barack Obama’s administration, the Department of Education issued guidelines that broadened a school’s obligations for handling sexual assault allegations. Detractors, colleges and men’s rights groups decried these rules as overly harsh and vague, and an assault on due process rights.
DeVos’ plans could become law after a public comment period — the start date for that is unclear, although it will likely last 60 days — and if they do, schools would no longer be responsible for investigating certain kinds of reported incidents, such as an assault that took place between two students off-campus in a private residence during a weekend party. Under the new rules, the Education Department will only punish schools for mishandling assault allegations if their response is “clearly unreasonable in light of the known circumstances.”
“The lack of clear regulatory standards has contributed to processes that have not been fair to all parties involved, that have lacked appropriate procedural protections, and that have undermined confidence in the reliability of the outcomes of investigations of sexual harassment allegations,” the Department of Education said in the proposal.
Cover image: Betsy DeVos, U.S. secretary of education, speaks during a meeting with U.S. President Donald Trump, not pictured, in the Cabinet Room of the White House in Washington, D.C., U.S., on Thursday, Aug. 16, 2018. Trump prodded China to offer more at the bargaining table as the two countries prepared for their first major negotiation in more than two months in an effort to head off an all-out trade war. Photographer: Oliver Contreras/Pool via Bloomberg