The Department of Education under Secretary Betsy DeVos issued new rules on Friday governing the way colleges and universities around the country handle allegations of sexual harassment and assault.
The new rules, which apply to primary and secondary schools as well as universities, concern schools’ responsibilities under the federal non-discrimination law known as Title IX. Among other changes, the rules narrow the definition of sexual harassment, and allow schools to raise the bar for proving harassment and assault claims. That should please advocates for accused students, who have long argued that Title IX guidelines set forth by the Obama administration in 2011 were unfair to the accused.
“We can, and must, condemn sexual violence and punish those who perpetrate it while ensuring a fair grievance process,” DeVos said in a statement Friday on the new rules. “Those are not mutually exclusive ideas.”
But survivors’ advocates say the new regulations are unfair, and could leave many students with nowhere to turn when they are sexually harassed — as well as letting schools off the hook when they fail to adequately address the problem.
The new rules are part of a long process for DeVos, who announced the rollback of the Obama-era guidelines last year. Before the announcement, DeVos met with a men’s rights group with a history of minimizing sexual assault, raising questions about whether she had survivors’ best interests at heart.
For advocates, the new rules confirm their fears. “This will make schools less safe and make it harder for survivors to report,” Jess Davidson, executive director of the group End Rape on Campus, told Vox after a draft of the rules became public earlier this year.
The new rules make several key changes to the way schools must handle sexual misconduct claims
The new rules govern the implementation of Title IX of the Education Amendments of 1972, which bans discrimination on the basis of sex in educational settings. Over the years, courts have ruled that sexual harassment and assault are forms of gender discrimination prohibited by Title IX. In 2011, the Obama administration released what is now known as the “Dear Colleague” letter, explaining how it would enforce Title IX.
The letter was not a new law — rather, it was guidance explaining how schools should comply with existing law. Among its core tenets was the statement that in order to comply with Title IX, schools had to use a “preponderance of the evidence” standard when deciding sexual harassment cases, meaning that the accused would be found responsible if the evidence showed it was more likely than not that a violation occurred. Prior to the letter’s release, some schools had used a higher “clear and convincing” evidence standard, which put a greater burden on accusers to show that the accused had committed misconduct.
Advocates for accused students, including men’s rights groups, have long argued that the tenets of the “Dear Colleague” letter, especially the “preponderance of the evidence” standard, deprive the accused of due process in Title IX cases, even though the preponderance standard is common in other civil cases.
DeVos signaled that she might be sympathetic to these viewpoints in July of last year, when she held meetings to discuss the issue with the groups Families Advocating for Campus Equality (FACE) and Stop Abusive and Violent Environments (SAVE), which advocate for the rights of people accused of sexual assault, and the National Coalition for Men (NCFM), a men’s rights group. The president of NCFM once defended football player Ray Rice after he was caught on camera assaulting his then-girlfriend, saying, “If she hadn’t aggravated him, she wouldn’t have been hit.” The group has also posted photographs and names online of women who have accused men of rape.
DeVos also met with survivors’ groups at the time, but the fact that she was willing to give a group like NCFM equal time stoked fears that she did not have survivors’ concerns at heart.
Then, last September, DeVos announced that the Education Department would roll back the 2011 guidelines. In a speech at George Mason University, she derided the Obama-era guidelines as a “failed system” that was denying students due process, and she placed special emphasis on what she saw as unfairness toward accused students.
“The failed system has clearly pushed schools to overreach,” she said. “With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today.”
DeVos put in place a set of interim guidelines at that time, until final regulations could be developed. A draft copy of the regulations leaked earlier this year, and the official versions were released on Friday, as Laura Meckler reports at the Washington Post. They differ from the Obama-era guidelines in three key ways:
The new regulations change the evidentiary standard for Title IX sexual harassment proceedings. Under the new rules, schools may use either the preponderance standard or the “clear and convincing” standard in sexual harassment cases (the rules use the term “sexual harassment” to encompass both harassment and assault), but they must use the same standard for allegations against students as they use for those involving employees, including faculty.
They raise the bar for what counts as sexual harassment under Title IX. The 2011 guidelines defined sexual harassment as “unwelcome conduct of a sexual nature.” But the new rules set a stricter standard for what constitutes harassment, defining it as “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.”
They make it harder to find schools legally responsible for failing to address harassment. Under the 2011 rules, schools could be held responsible for failing to act if they knew about or “reasonably should” have known about an episode of harassment or assault. Under the new guidelines, the school must have “actual knowledge” of the episode in order to be held responsible.
At universities, the survivor must also make a formal complaint through official channels, meaning that telling a professor or resident adviser isn’t sufficient, as Meckler noted. And schools can only be held responsible for incidents that happen on school property or at school-sponsored events, not at private, off-campus residences.
Survivors’ advocates say the new rules put students at risk
When the draft rules leaked earlier this year, critics of the Obama-era guidelines were pleased.
“It sounds as though the proposed rules will go a long way towards restoring meaningful due process protections to the campus justice system, which will benefit both accusers and the accused,” Robert L. Shibley, the executive director of the Foundation for Individual Rights in Education, a civil libertarian group, told the New York Times.
But survivors’ advocates say the rules are unfair to students who experience harassment and assault, and will make it harder for survivors to come forward.
A “clear and convincing” standard, allowed under the new rules, “is not the appropriate standard of evidence for this kind of claim,” Davidson said. The “preponderance of the evidence” standard is appropriate because “it assumes that neither party is right or wrong” and “puts both students on equal footing,” she argued.
The Education Department is instructing schools to be neutral and unbiased when adjudicating sexual harassment claims, Davidson said, “but then they’re implementing a standard that is not neutral.”
The preponderance standard is used in most civil cases, but is looser than the “beyond a reasonable doubt” standard used in criminal cases. Survivors’ advocates argue that using the looser standard is appropriate because the potential penalties are lower than in criminal cases — the worst that can happen to a student as a result of a Title IX proceeding is expulsion.
Advocates also note that the “reasonable doubt” standard is meant to give the defendant’s word more weight than the state’s — but in a Title IX case, each student’s word should have equal weight.
“Preponderance of the evidence is the only standard that values both parties’ access to education equally,” Alyssa Peterson, the policy and advocacy coordinator of the group Know Your IX, told Vox last year.
Advocates also say that changing the definition of sexual harassment will put survivors’ education at risk. The move means schools are not obligated to investigate harassment until a student is already losing access to their education, Davidson said. Survivors are already reluctant to come forward because society minimizes any form of sexual misconduct that isn’t rape, she said, and the new definition will make the problem worse.
“I would certainly look at that standard, and if I was a student who was being sexually harassed, wonder what would make my administration take it seriously,” she said.
Meanwhile, the requirement that a student make a formal complaint “makes it harder for students to get access to the Title IX process,” Davidson said.
Many students have close relationships with coaches or other authority figures and would prefer to disclose sensitive information to them rather than to a Title IX coordinator. But the new rules mean that schools aren’t obligated to investigate information that comes through someone like a coach. Under the new rules, Davidson said, coaches at Michigan State University might not have been obligated to report abuse by Larry Nassar.
It’s also concerning that schools would no longer be obligated to investigate many incidents that occur off-campus, Davidson said, since nearly nine out of 10 college students live off-campus. “Where the assault occurs doesn’t really have bearing on whether or not learning in the same environment as your assailant can prevent you from having equal access to education,” she said.
According to an Education Department investigation, the new rules will lead to around a 39 percent annual reduction in sexual harassment investigations at colleges and universities, the New York Times reported in September. That would lead to a cost savings of $19 million for universities, the analysis found.
“The goal here is to keep people from reporting,” Davidson said of the new regulations, citing the cost savings to universities.
The new rules fly in the face of everything the American public has learned from the #MeToo movement over the past year, Davidson said. But they aren’t yet set in stone; the new rules will enter a 60-day public notice and comment period before they become final.
“We do have the opportunity to change this,” Davidson said. “Everybody who has spoken up about #MeToo and who says that they support the movement, now’s a chance for them to actually prove it.”