Education Secretary Betsy DeVos made good Wednesday on her vow to restore due process on campus, seeking to end the “kangaroo courts” that sprung up under the Obama administration by protecting the rights of the accused while strengthening safeguards for accusers.
Her newly unveiled Title IX regulations defined sexual harassment and assault as unlawful sex discrimination while requiring schools to adopt a “fair, transparent process” for investigating and resolving such cases. They also provide an equal right of appeal for both parties.
Rebalancing the scales of justice on campus sexual misconduct has been a priority for Mrs. DeVos since taking the reins at the Education Department, which under the Obama administration’s 2011 “Dear Colleague” letter pressured universities to crack down on sexual assault by using a lower standard of evidence or risk a federal civil rights investigation.
The result was hundreds if not thousands of lawsuits filed by students who claimed they were railroaded by college tribunals — in some cases suspended or expelled — after being falsely accused of sexual misconduct.
“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” Mrs. DeVos said. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”
The changes were immediately decried on the left as “dangerous,” “sexist” and “unjust” as foes argued that the reforms requiring colleges to provide for a courtroom-style adversarial adjudication process would discourage victims from filing complaints.
“Under these new rules, students who experience sexual harassment will face unjust obstacles to an equal education — obstacles that do not stand in the way of classmates who face comparable harms, like other forms of harassment and physical violence,” said Public Justice staff attorney Alexandra Brodsky. “The rules are a startling attempt to wipe away accountability for schools and reimagine a law that forbids sex discrimination to require such discrimination instead.”
Meanwhile, conservative and due-process groups cheered the reforms. Young America’s Foundation said the regulations will “restore constitutional principles and allow students to be confident in fairness and accountability from their schools.”
The 2011 “Dear Colleague” required colleges to use a “preponderance of the evidence standard to resolve cases of sexual discrimination,” as opposed to the “clear and convincing” standard used in criminal cases, but the regulations announced Wednesday require universities to choose one of the standards — and apply it evenhandedly.
The regulations also uphold the accused’s right to “written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing.”
Hearings and investigations may be held remotely using technology. Anyone accused must also receive a written assurance that they are presumed innocent until proven guilty.
To protect rights of accusers, schools are required to respond “promptly” to complaints; provide supportive measures such as class or dorm reassignments and no-contact orders; shield accusers from undergoing face-to-face cross-examination by their alleged attackers or divulge personal medical information, and give survivors a role in deciding how the school should respond to incidents.
“The new Title IX regulation is a game-changer,” said Kenneth L. Marcus, assistant secretary for the Education Department’s Office for Civil Rights. “It establishes that schools and colleges must take sexual harassment seriously, while also ensuring a fair process for everyone involved.”
Mr. Marcus said the policy “marks the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct. There is no reason why educators cannot protect all of their students — and under this regulation there will be no excuses for failing to do so.”
The final rule is scheduled to take effect Aug. 14.