Education Secretary Betsy DeVos has proposed an overhaul of the way schools and universities respond to victims and the accused in sexual assault cases, citing an Obama-era rule that she said failed to ensure fundamental fairness.
The Department of Education announced this month that the proposed regulation under Title IX, the federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities that receive federal funding, was developed after more than a year of research and deliberation from Title IX coordinators and other stakeholders.
“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” DeVos said. “That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.
“We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process,” she said. “Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function.”
The department said their proposed rule takes the important and historic step of defining sexual harassment under Title IX.
The key provisions:
– Schools would be required to respond to every known report of sexual harassment and to investigate every formal complaint.
– Implement supportive measures such as counseling, no-contact orders and leaves of absences.
– The accused would be presumed innocent, with a right to cross-examine their accuser.
Colleges and universities would be required to hold a live hearing where cross-examination would be conducted through the parties’ advisers.
To promote impartial decisions, schools would not be allowed to use a single investigator or investigator-only model.
“It is our goal with this proposed rule to ensure that Title IX grievance proceedings become more transparent, consistent, and reliable in their processes and outcomes,” DeVos said. “Far too many students have been forced to go to court to ensure their rights are protected because the department has not set out legally binding rules that hold schools accountable for responding to allegations of sexual harassment in a supportive, fair manner.
“By following proper legal procedures and receiving input on our proposed rule, we will ultimately have a final regulation that ensures that Title IX protects all students,” she said.
But civil rights groups such as the Victim Rights Law Center say that the proposed Title IX regulations will silence sexual assault victims.
“Despite the department’s claimed focus on due process, the regulations are inherently inequitable and create a dangerous environment for student victims,” said Stacy Malone, executive director of the Victim Rights Law Center. “We know that one in five women will be sexually assaulted in college. If the proposed regulations become law, it will lead to fewer reports of sexual violence, less accountability for perpetrators, and a weakening of institutional responsibility.
“In a moment in history where survivors are speaking out in record numbers, these regulations will create a deafening silence,” Malone said.