New Campus Sexual Misconduct Rules Protect The Accused and Colleges

In new proposed rules obtained by The New York Times and described in a detailed news report today, Education Secretary Betsy DeVos is proposing changes to federal policy on campus sexual misconduct that would boost the rights of students accused of rape and other forms of sexual assault and harassment. The policy would also relieve schools of liability in many cases while encouraging them to give more support to victims.

Under the Obama administration, victims’ rights groups argued that schools did not adequately protect the rights of the accused. In 2011, the Obama Education Department sent a letter, now known as the “Dear Colleague” letter, that addressed what administration officials saw as a failure to protect victims of campus sexual assault. The letter went to 4,600 institutions of higher learning and advised that in adjudications involving sexual misconduct allegations, schools should require the lowest possible burden of proof, a “preponderance of evidence” standard often described as just over a 50% likelihood of guilt.

A feature story in The Atlantic magazine last year described how a female student at the University of Massachusetts at Amherst got high with a male student, voluntarily performed oral sex on him and then afterward felt she had been sexually assaulted. The woman filed charges with local police who dropped her case but the school took her allegations seriously, placed restrictions on the male student and then suspended him and barred him from living in campus housing. The male student wound up leaving UMass.

The new DeVos regulations would allow schools to choose their own evidentiary standard. They could stick with a preponderance of the evidence or use a higher standard like “clear and convincing.”

For the last year, under Education Department policy, schools have been allowed to use mediation to reach informal resolutions. The proposed rules would let both victims and accused perpetrators both request evidence from one another and to cross-examine one another, and it would give both access to evidence gathered during an investigation. The Obama administration saw mediation as inappropriate, even when the parties were in favor of it, and it believed that allowing the parties to question one another would be traumatic or intimidating.

The proposed rules also narrow the definition of sexual harassment to a new Supreme Court standard that says it means “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.” Under Obama, it was defined as “unwelcome conduct of a sexual nature” that includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

Accord to the Times’ account, the new rules also say institutions can only be held legally responsible for investigating formal complaints and responding to reports that school officials have “actual knowledge” of happening. A formal complaint is one made to “an official who has the authority to institute correcting measures,” the Times quotes the document as saying, as opposed to a complaint made to a residential advisor in a dormitory.

The proposed rules only hold schools responsible for investigating incidents that take place within their own programs or on their campuses, and not, for example, in an off-campus house where fraternity members live and party. The Obama administration required schools to investigate complaints involving students no matter where they took place.

The proposed DeVos rules would also change a standard that dates back to 2001, that a “school knows, or reasonably should know, about possible harassment.” College leaders have complained that standard was too broad and held them responsible for conduct they knew nothing about. Under the new rules, schools are in violation of the law only if their response to sexual harassment “is clearly unreasonable in light of known circumstances.”

The proposed rules are coming to light at a time when big schools like Ohio State University, the University of Southern California and Michigan State University are all coping with serious charges.  Members of faculty and staff at the three schools have been accused of failing to protect students from sexual misconduct by coaches and campus doctors, and school leaders are charged with covering up the misconduct.

An Education Department spokeswoman reached by the Times said that the proposed rules were “premature and speculative and therefore we have no comment.”

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