- The Washington Times - Friday, November 16, 2018

Education Secretary Betsy DeVos has released a broad overhaul of the federal guidance on campus sexual assault and harassment, a proposal aimed at striking a balance between the rights of the accuser and the accused.

The proposed Title IX regulation requires schools to respond to “every known report of sexual harassment and to investigate every formal complaint” while adding protections for the accused, a departure from the now-defunct 2011 Obama-era directive that was widely criticized for tipping the process in favor of the accuser.

Under the new rule, schools would be required to afford “basic due process protections for students,” including a presumption of innocence, written notice of the allegations, equal opportunity for both sides to review the evidence and the right to cross-examination, which could be conducted in separate rooms.

“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” Mrs. DeVos said Friday. “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function.”

Hundreds of lawsuits have been filed by students alleging they were unfairly expelled or suspended by universities under pressure from the federal government to crack down on campus sexual harassment and assault by ruling in favor of accusers.

“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,” Mrs. DeVos said.

The 150-page rule making, which is subject to a 60-day public-comment period after being posted in the Federal Register, was praised by those advocating for greater campus due process but denounced by progressive groups who said the changes would discourage victims from coming forward.

“The proposed changes to #TitleIX are deeply disappointing and would undermine the rights of survivors,” tweeted the feminist group Time’s Up. “Institutions should be doing all that they can to ensure that students who have been sexually harassed or assaulted are able to come forward and be heard.”

Rep. Bobby Scott of Virginia, ranking Democrat on the House Education and Workforce Committee, said the proposal “would be a damaging setback for our efforts to prevent campus sexual harassment and assault.”

Rep. Virginia Foxx, North Carolina Republican and committee chair, cheered the proposed rule making, saying that the “Obama administration did serious damage with its arbitrary Title IX guidance.”

“Today’s step toward creating reliable and fair procedures for addressing sexual discrimination, harassment, and assault for individuals at every level of education is both necessary and crucial,” Ms. Foxx said.

The overhaul included a narrower definition of sexual harassment, which was described as “unwelcome conduct of a sexual nature” under the 2011 DOE Office for Civil Rights guidance, issued in the form of a “Dear Colleague” letter.

Mrs. DeVos rescinded the Obama-era directive in September 2017, saying the “era of ‘rule by letter’ is over,” and promised to replace it.

Under the proposed regulation, sexual harassment would be defined as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”

Schools would be able to choose the higher “clear and convincing” standard of proof for allegations, as opposed to the “preponderance of the evidence” standard under the Obama-era rules, which meant that it was “more likely than not” that the incident occurred.

The rule also would limit university liability by requiring investigations for incidents occurring on school grounds or areas overseen by the institution, and would require equal opportunity for appeals.

“By taking the rights of both complainants and accused students seriously, these proposed regulations make important strides toward ensuring that complaints of sexual misconduct will be neither ignored nor prejudged,” said Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education.

The proposed rule also emphasized the importance of support for victims, whether or not they file a formal complaint, including course adjustments, counseling, no-contact orders, dorm-room reassignments, leaves of absence and changes to class schedules.

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