WASHINGTON – Minister of Education Betsy DeVos issued on Wednesday final regulations Regarding sexual misconduct in education, colleges and schools are setting new rules on how to deal with one of the biggest problems that have messed up their campus for decades.
The rules meet one of the Trump administration’s key policy goals for Title IX, the 48-year-old federal law that prohibits gender discrimination in federally-funded programs and strengthens the protection of accused students in court, while schools by some legal obligations are released. But Ms. DeVos expanded the scope of the law in other ways and stated Dating violence as a category of sexual misconduct that needs to be addressed and prescribes support measures for suspected victims of assault.
Enforcement of the law has also been controversial, especially since the Obama administration issued guides in 2011 and 2014 advising schools to advance misconduct investigations and warning that failure to do so could have serious consequences. Critics said schools felt pressured to join the accusers without granting sufficient rights to the accused. And have dozens of students Legal proceedings won against their colleges for violating their rights under the Obama era rules.
When Ms. DeVos announced in 2017 that she would remove the leadership of the Obama era, she said she would legislate schools from kindergarten to college with the force of law that balances these rights. Her final rules, which she described as a “historical” break from the “kangaroo courts” of the past, come into force on August 14.
“Today, we are issuing a final rule that recognizes that we can continue to fight sexual misconduct without giving up our core values of fairness, presumption of innocence, and due process,” Ms. DeVos said when calling reporters.
Victim groups promised to challenge the new rules in court.
“We refuse to go back in time when school rape and harassment were ignored and swept under the carpet,” said Fatima Goss Graves, president of the National Women’s Rights Center.
The new provisions take over the Supreme Court’s definition of sexual harassment as “undesirable behavior that is so serious, pervasive and objectively offensive” and require colleges to hold live hearings where prosecutors and accused can be heard to question their credibility. The rules also limit complaints that schools are required to examine only those who have been submitted through a formal process and have been made aware of officials who are empowered to take corrective action, and not to other authorities such as housing advisors.
Schools are also responsible for examining only episodes that are said to have occurred as part of their programs and activities, not, for example, apartments that are not affiliated with a university. And they have the flexibility to choose which standard of evidence they want to use to find students who are responsible for misconduct – “overweight evidence” or “clear and convincing evidence”.
In order to find a school that is legally responsible for the abuse of allegations, “deliberately indifferent” evidence would have to be provided when fulfilling mandates to support victims and to investigate complaints fairly. The 2,000-page document emphasizes “fair” treatment and the presumption of innocence.
The rules are the most concrete and far-reaching policy measure for Ms. DeVos’ term and was pushed by President Trump. Groups that have long fought against the rules of the Obama era won on Wednesday.
“The department’s new regulations require schools to provide a fundamentally fair process to students before imposing these life-changing ramifications,” said Samantha Harris, a senior fellow at the Foundation for Individual Rights in Education, a university group.
The Obama administration’s 2011 Dear Colleague letter and supplemental policy clarification in 2014 generally defined sexual harassment and blamed schools for episodes they knew or “should reasonably have known” of. They asked schools to use a standard for the preponderance of evidence when assessing cases and advised against cross-examination and mediation between prosecutors and accused.
Victim groups said this approach ushered in a new era of university accountability and made schools aware that Title IX was not just about equal access to sports teams. The Obama administration identified a pattern of cover-ups and rampant ill-treatment of Title IX procedures both in higher education and in elementary and secondary schools, and launched high-level investigations into schools that were at risk of losing federal funding.
Arne Duncan and John B. King Jr., President Barack Obama’s education secretaries, said in a joint statement that the rules “are part of a tremendously worrying pattern to further reduce civil rights for students, especially those most under-served” .
“As mentioned in the Obama administration’s 2011 guidelines, we believe that institutions that violate Title IX should be held accountable for their actions and protect the rights of victims,” said the former secretaries. “Doing something different is simply unacceptable.”
Ms. DeVos’s first suggestions, published in November 2018, sparked more than 120,000 public comments and hosted hundreds of meetings between Ministry of Education officials and interest groups.
The final rules have been changed to address at least some of the concerns. The department changed regulations that would have allowed schools to ignore virtually all off-camp misconduct allegations, and officials changed the way critics claimed it had traumatized the victims again.
For example, the department has expanded responsibility beyond campus, declaring that schools are required to investigate allegations of wrongdoing that are “in a building owned or controlled by a student organization officially recognized by a post-secondary institution,” like a brotherhood or a sisterhood.
Responsibility also extends to “places, events, or circumstances” over which the school has “substantial control” over students and activities, such as field trips or academic conferences. However, the rules exclude actions that happen to students abroad.
It also mitigates initial proposals for cross-examination. It prohibits students from questioning each other in personal confrontation and leaves it up to advisers and lawyers. A hearing officer must first decide whether the questions are relevant and questions about a person’s sexual history in general are not.
Lawyers for accused students pushed for cross-examination, which they believed was a crucial tool to eradicate the truth and frivolous complaints.
Justin Dillon, lawyer at KaiserDillon, who has represented more than 100 accused students in more than 100 schools, said the rules were “a great victory for fundamental fairness and long overdue”.
“It was a process that resembled almost nothing the administration did – it was honest, it was thorough,” he said. “If the Trump administration had put half the thought into the corona virus, as they did in the provisions of Title IX, we would all get back to work now.”
The final provisions also provide for exemptions for primary, secondary and other technical schools, as it is feared that the draft regulation would have given young children the same treatment as young adults. These schools do not have to hold a hearing or cross-exam, although the parties must be able to ask written questions. And elementary and secondary school students can report their claims to any employee, unlike colleges where reports must be directed to a senior official.
The department believed that the Supreme Court’s strict definition of harassment was so rigorous and widespread that an individual was effectively denied access to an educational program or school activity. However, the last rule added that behavior could be harassment if “a reasonable person” said so. The department has also clarified this sexual assault, dating violence, domestic violence and stalking are also sexual harassment, and these allegations need not be strict and ubiquitous.
The rules also require schools to reject complaints that do not meet the definition of sexual harassment, even if the allegations are proven to be true.
The rules strengthen the role and visibility of Title IX coordinator, the lead person in facilitating the complaints procedure, and allow schools to appoint multiple staff to the position. These employees must now offer “supportive measures” to prosecutors, even if they choose not to file a formal complaint. The department added an extensive section to combat retaliation against people who complain about sexual misconduct.
Meredith Smith, the Assistant Examiner for Title IX and Clery at Tulane University, said she was concerned about how her students would react to the rules, including those who were accused of misconduct.
“You will see this incredibly legalistic way of responding to the harm they have suffered, including the charge of terrible things, and instead of looking at us as people who can help, we are here to start litigation.” She said. “I thought I was working in the area of civil rights and ensuring access to education, but instead I’m going to run a courtroom.”
The rules require that accused students are assured in writing that they are considered innocent. Schools could not impose disciplinary measures on students accused of misconduct until the end of the process, although they still have the option to remove students from campus if they are found to be at risk. Cases involving students can be resolved through mediation, but cases involving both employees and students cannot.
The rules could be reversed in Congress if the Democrats regained the Senate and kept the house in November.
“Democrats will not stand still when the Trump administration attacks student civil rights and will fight to ensure that every college campus is free from fear and threats of discrimination, harassment, or violence,” Californian spokeswoman Nancy Pelosi said in a statement .
The Republicans praised the rules as fair.
“Under the previous government, a single US Department of Education official issued decrees without an appropriate public contribution,” said Senator Lamar Alexander, Tennessee, chairman of the Senate Education Committee.
Headmasters and public headmasters asked Ms. DeVos to stop issuing regulations during the Coronavirus pandemic, and since most of their schools were closed, asked them to at least postpone their deadline.
“The Department of Education doesn’t live in the real world,” said Ted Mitchell, president of the American Council on Education, who represents college presidents and administrators. “Choosing this moment to adopt the most complex and challenging regulations the agency has ever adopted reflects an appallingly poor judgment.”
Ms. DeVos defended her decision and said the schools knew the rules were coming and had enough time to prepare.
“The reality is that civil rights really can’t wait,” she said.