DeVos proposes overhaul to campus sexual misconduct rules

LEAH MILLIS  REUTERS  Newscom

"Under Obama, it was defined it as 'unwelcome conduct of a sexual nature.' The new rule would define sexual harassment as unwanted sexual conduct that is 'so severe, pervasive and objectively offensive that it denies a recipient's education program or activity'".

Under DeVos's new plan, colleges would only be required to investigate allegations that occur on campus, somewhere owned by the school, or at a school-funded event. Some colleges complained that the rules were too complex and could be overly burdensome.

"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. "It promises schools that if they follow specific, very minimal steps, then they can not be found liable for violating Title IX, and it sets an astonishingly low set of expectations".

Ms DeVos said: "Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined".

DeVos' plan is also likely to cut down on actions taken by the Education Department, which can penalize schools for failing to uphold Title IX. The focus did not shift toward sexual assault victims until 1997, when "Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties" was published in the Federal Register, according to a 2001 Revised Sexual Harassment Guidance issued by the Office for Civil Rights.

"These rules further protect abusers in a system that is already rigged in their favor and dramatically reduce requirements that schools protect their students", Thomas warned.

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"I think we were all expecting more structure around expectations related to due process and more narrowly defined definitions than what had been out there before", she said. The proposal raises the bar for proving that failure, saying schools must be "deliberately indifferent" to be held legally liable. Saunie Schuster, a lawyer who advises a range of colleges, says the vast majority of complaints arise off-campus and would no longer need to be addressed by schools, although colleges could still go beyond minimum requirements. "That starts with having clear policies and fair processes that every student can rely on".

But supporters say the proposal does a better job providing equal treatment to all students. We are now reviewing the Department of Education's proposed rules.

The definition of sexual misconduct that administrators would be obligated to investigate would be narrowed, reflecting frustrations from right-wing politicians at the Obama administration's interpretation of federal gender-based protections under Title IX.

DeVos is likely to be questioned by Democratic lawmakers on her rule changes on sexual assault. Though the guidance officially noted that schools can choose between either standard, they cannot have the lower standard in place for students if "clear and convincing evidence" is required for accusations against faculty members and employees.

It also allows schools to use a higher standard of proof to determine if a student should be found responsible for misconduct.

Education secretary Betsy DeVos said the proposals are created to ensures fairness for students on both sides of accusations, while offering schools greater flexibility to help victims who don't want to file formal complaints that could trigger an investigation.

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