New federal regulations on how schools – from kindergarten all the way through college — must respond to cases of sexual assault and harassment are drawing swift and mixed reactions.
Education Secretary Betsy DeVos announced what she called historic changes Wednesday to Obama-era guidelines that she said will make the process fairer and better protect accused students. While some welcome the changes to Title IX as long overdue, survivors' advocates are panning the new rules as a throwback to the days when sexual assault was seldom reported or punished, and schools are protesting they can't possibly implement them by summer, as required.
Among the most significant changes are new regulations aimed at beefing up protections for accused college students, by mandating live hearings by adjudicators who are neither the Title IX coordinator nor the investigator, and real-time cross examination of each student by the other student's lawyer or representative.
"Cross examination is an important part of ensuring truth is found," said DeVos, adding that "our rule is very sensitive to not requiring students to face each other. In fact it specifically prohibits that. But it's an important part of ensuring that justice is ultimately served."
Under the new regulations, students also have a right to appeal, and schools are allowed to raise the evidentiary standard from "a preponderance of the evidence" to "clear and convincing," making it harder to find a student responsible for misconduct.
Also, the definition of sexual harassment narrows, so only that which is "severe, pervasive and objectively offensive" warrants investigation. On the other hand, dating violence and stalking would now be added to the kinds of offenses that schools must respond to.
Devos' proposed regulations, released last fall, would have given schools no responsibility to deal with off-campus incidents. But after a torrent of criticism, the final rules clarify that schools must respond to off-campus incidents that are in places or during events that the school is involved with. So, for example, frat houses would be covered, but a private off-campus apartment, would not. And a school would be obligated to respond to an alleged incident during a school field trip but not a private house party.
Cynthia Garrett, co-president of Families Advocating for Campus Equality, a group that advocates for the accused, welcomes the changes as long overdue.
"Anybody who's accused of something so vile [as sexual assault] has to have the opportunity to defend themselves," she says. "I think that in order to ruin someone's life [by expelling them from school] there has to be a process like this. It shouldn't be easy."
An accused student who asked to be identified as John Doe, as he was in his court cases, agrees that the new regulations are "very encouraging." He sued his school for suspending him after a hearing that he says denied him due process, by forcing him to defend himself without his attorney, and not allowing him to question his accuser. Later, after a federal court ruling in his favor, he reached a settlement with his school that wiped his record clean. But that was after nearly five years of what he describes as torment.
"People don't realize what these hearings used to look like," he says. "They can't just be a horse and pony show where they go through the motions and the school comes to a predetermined outcome."
Survivor advocates, however, say the new regulations will have a chilling effect on reporting, as alleged victims may view it as futile to file a formal complaint, or too retraumatizing, for example, to be subject to cross-examination. "This is extremely worrisome," says Sage Carson, manager of the survivor advocacy group Know Your IX. The new regulations "make it clear to me that DeVos cares more about schools and [accused students] than she does about survivors," says Carson.
The off-campus exclusion is also a sticking point. "We know that a majority of violence does not happen in libraries or in on-campus housing," says Carson.
She says she was assaulted in an off-campus apartment years ago, and was allowed to file a formal Title IX complaint back then. But if the rules then were like what DeVos is announcing now, Carson would not have had the option. "I would absolutely have dropped out of school," she says.
Doe, however, who was accused of an alleged assault during a private weekend jaunt hundreds of miles away from school during summer break, says the new rules prevent that kind of "overreach." His accuser wasn't a student at his college anymore. He says, "I just don't think that's reasonable."
Schools meantime, have objections of their own, first and foremost being forced to play the role of virtual trial courts to adjudicate intensely complex cases.
"We are not set up to do that," says Terry Hartle, senior vice president of the American Council on Education, a trade association representing 2,000 public and private colleges and universities. "We do not have the legal authority to do that. We don't have the social legitimacy to do that. We want to teach students. We don't want to run courts."
Schools also object to the timing, requiring the changes to be implemented by August 14th, even though schools are already overwhelmed with managing their sudden switch to online learning because of COVID-19.
"This is madness," says Hartle. "This is an extraordinarily complicated piece of work that they have spent more than three years developing. It's a mistake to now turn to colleges and universities and say, put it in place in 100 days. It's simply not going to work very well."
Smaller schools, especially, Hartle says, "are just overwhelmed. They don't know how or where to begin" to implement these changes.
Anticipating the objections, DeVos insisted that "civil rights really can't wait. And students cases continue to be decided now." She suggested that this may actually be the best time for schools to make the changes since there are no students on campus.
Hartle says schools will continue pressing for the Department of Education to allow schools more time. Meantime, several legal challenges are in the works, so a temporary stay is also a possibility. That would give schools a reprieve while those cases wind their way through the courts.