DeVos proposes overhaul to campus reporting of sexual misconduct

Pauline Gross
November 19, 2018

DeVos said she had worked to strike a balance while creating a more transparent and reliable process. "Those are not mutually exclusive ideas", she said. But yes, higher standard. This proposal, by contrast, pushes the pendulum in the reverse direction.

Advocacy groups for victims say the Obama rules forced schools to stop sweeping the issue under the rug, while advocates for accused students say it tipped the scales in favor of accusers. These rules would make schools more unsafe and push survivors out of school. "We are not courts".

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But advocates for the accused called this an essential change that could help counter inherent bias among college administrators who investigate incidents. The administration says it wants to make sure "only objectively serious behavior is actionable". Under the proposed directives-which would apply to any college, university, or K-12 school in the United States that receives federal funding, with some specific stipulations-schools would have to let anyone accused of sexual assault cross-examine their accuser through a third party.

Her rules will be published in the Federal Register and subject to public comment for 60 days before being finalized.

Critics said the Obama approach was confusing for universities and improperly made outside the formal rulemaking process.

Advocates for students accused of sexual misconduct have argued that some of the guidance under the Obama administration was unfair to the alleged perpetrators - prompting DeVos previous year to rescind Obama's measure and pledge the Education Department would embark on a "workable, effective and fair system".

The University of California Title IX coordinator said she opposes the federal government's decision to change sexual violence and harassment policies.

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The new guidelines will raise the bar for what constitutes as sexual harassment, which the Obama guidelines defined as "unwelcome conduct of a sexual nature". "While not ideal, the proposed regulations indicate the federal government's recognition that students accused of serious misconduct are entitled to meaningful due process rights, and the proposed regulations include a number of important procedural protections that will improve the integrity of the process for everyone".

In addition, the alleged incident would only have to be investigated if it took place on campus or during a school-sponsored event. "The goal is to basically reduce the obligation of schools to address sexual harassment", Elizabeth Tang, an attorney at the National Women's Law Center, told Buzzfeed News.

DeVos' plan is also likely to cut down on actions taken by the Education Department, which can penalize schools for failing to uphold Title IX.

In the case of Gebser, the court determined that a school can be financially liable if a teacher sexually harasses a student. She later swung behind Trump's candidacy despite reports that he faced his own allegations of sexual assault. But the regulations themselves say that a case will merit punishment by the Department only if it is "clearly unreasonable in light of the known circumstances".

The proposed regulations would also require schools to respond fairly and meaningfully to all reports of sexual harassment and provide supportive measures to victims; and permit cross-examination between both parties through an adviser after a report has been filed. "System-wide and campus-based working groups representing every constituency at our universities will work independently and together to develop and put forward recommendations based on comprehensive assessments of current policies and processes, and on best practices". She emphasized that university hearings were not legal proceedings, but rather used to determine whether a student had broken a rule in Gonzaga's Code of Conduct. The regulation does provide "rape shield protections" for accusers, meaning they can not be questioned extensively on things like their sexual history.

It allows schools to use a higher standard of proof when weighing cases. Currently, colleges are held responsible for investigating misconduct they know or should know about even if it occurs off campus - if the assault affects the victim's education.

"I think most universities are going to stay the course for fear of becoming ground zero for activists to say, 'Look how bad rape victims are being treated at this university, ' " he said. The new regulations also permit the use of informal resolution processes to resolve sexual misconduct allegations if the parties agree.

Other reports by GizPress

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