DeVos proposes overhaul to campus sexual misconduct rules

Lester Mason
November 17, 2018

Education Secretary Betsy DeVos wants to radically alter the way allegations of sexual harassment and assault are investigated in schools, providing more benefit of the doubt to people who are accused of such crimes.

This new definition is part of a larger plan to decrease the reporting of sexual assault and misconduct on campus, which is being sold not as a protection for students, but as a cost-saving measure for schools and universities.

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". "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'".

"The proposed rule would require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process", the department states, "written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to "rape shield" protections".

Samantha Harris, a vice president for the Foundation for Individual Rights in Education, said the proposed regulations "make important strides toward ensuring that complaints of sexual misconduct will be neither ignored nor prejudged" and eliminate confusion that has led to "broad definitions of sexual harassment that threaten student and faculty speech" on campuses.

Her new proposal adds several provisions meant to protect accused students.

Victims are further limited by new rules that would require students to report any assault to a Title IX coordinator instead of a trusted professor or adult, which only encourages them to stay silent. Especially vulnerable under the new rules are transgender students, who experience higher rates of sexual harassment and violence than their peers.

But supporters say the proposal does a better job providing equal treatment to all students.

NBC News and the watchdog group American Oversight determined that DeVos spent less than 4 percent of her time visiting traditional public schools in the school year that began in September 2017. In its place, she issued the 150-page proposal released today.

Whaley said "clear and convincing evidence" would likely fall somewhere between preponderance of evidence and criminal standards of "beyond a reasonable doubt", but where on the spectrum she was not sure.

DeVos is likely to be questioned by Democratic lawmakers on her rule changes on sexual assault.

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.

In the case of Gebser, the court determined that a school can be financially liable if a teacher sexually harasses a student. These rules would make schools more risky and push survivors out of school.

It has yet to be seen whether schools would change policies in response to the rules. "If adopted, this rule will put even more barriers between transgender survivors and justice".

The proposed rule also emphasized the importance of support for victims, whether or not they file a formal complaint, including course adjustments, counseling, no-contact orders, dorm-room reassignments, leaves of absence and changes to class schedules.

Other reports by Iphone Fresh

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