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Education Secretary Betsy DeVos on Wednesday unveiled the department’s final rules for how schools are to conduct investigations into sexual harassment and assault allegations.
The new rule “defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex,” according to a news release from the Education Department under Title IX, a civil rights statute that bars discrimination based on sex.
Key Republicans applauded the move, including the ranking member on the House education committee Rep. Virginia Foxx, R-North Carolina, and Senate education committee Chairman Lamar Alexander of Tennessee, who said: “This final rule respects and supports victims and preserves due process rights for both the victim and the accused.”
“I commend Secretary DeVos for her thoughtful approach to this important issue, listening to feedback from stakeholders, and producing a final rule that will help institutions protect the safety and rights of all students,” Foxx said in a statement.
But the highly anticipated final regulations come after pushback from advocates who said the previously proposed guidelines would give an unfair advantage to the individual accused and deter victims from coming forward if forced to participate in a cross examination.
The final rule requires reports in postsecondary institutions to go through designated channels, like a Title IX coordinator, which House Education Committee Chairman Bobby Scott, D-Virginia, and judiciary committee Chairman Jerry Nadler, D-New York, said in a joint statement could give way for institutions to “overlook many instances of harassment that they were previously obligated to address.”
“Even when schools fail to fulfill their new, more limited obligations, the rule makes it unlikely that they will be held accountable,” the two congressmen said. “Only schools found to be ‘deliberately indifferent’ to complaints — rather than the existing standard that required ‘prompt and effective action’ – will be considered in violation of Title IX.”
Sarah Nesbitt, a policy coordinator for the group Know Your IX, an advocacy group focused on ending campus sexual assault, echoed this sentiment, saying that the rule aims to “reduce liability for schools,”
“It will be harder for survivors to sue their schools when their schools have wronged and failed to provide them the support they need when they reported sexual misconduct,” she said.
The regulations require postsecondary schools “to provide for a live hearing,” where each party is permitted to choose an advisor who is designated to “ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility,” the department said in a summary of the rule’s provisions.
“They’ve made it very clear that the cross-examination would have to be done directly, albeit in real time, by the adviser of choice,” said Shiwali Patel, Director of Justice for Student Survivors at the National Women’s Law Center.
“That still doesn’t remove our concerns about a witness and a complaint. It having to be subjected to direct cross-examination, which, you know, we’ve heard from many survivors and groups that work directly with survivors, this requirement would be a deterrent to too many complainants from participating in the process at all as witnesses. And again, you know, it’s setting a different standard for complaints of sexual misconduct than for any other type of misconduct,” she said.
Nesbitt, of Know Your IX, also said this could still pose a problem for victims, and could lead to an “imbalanced” process.
She said that although it is slightly different from what the proposed rule stated, “It does not avoid the issues that we’re concerned about at all still.”
“Well-resourced student parties will be able to afford high powered attorneys while others were not,” she said adding that she feels this leaves open the possibility of a survivor of being cross-examined by the alleged abuser’s parent, best friend, fraternity brother or their new partner, which could be traumatizing.
However, Samantha Harris, a senior fellow at the campus free speech right’s organization, Foundation for Individual Rights in Education (FIRE), said the requiring of a live hearing is “critical.”
“A lot of schools abandoned hearings altogether in favor of a single investigator model where you had one person acting as detective, prosecutor, judge and jury,” Harris said. “These new regulations require that those functions be separated and that schools have a hearing at which the parties are able to engage in cross-examination. Now, they specify that the cross-examination has to be through an adviser, which I think is a very reasonable way to do it.”
The final rule is a culmination of DeVos’ work on the issue during her tenure as secretary — the Education Department rolled back previous guidance issued by the Obama administration through a “Dear Colleague” letter, which defined sexual harassment more broadly as “unwelcome conduct of a sexual nature,” including, ” unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
Additionally, the final rule “requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard – and to apply the selected standard evenly to proceedings for all students and employees, including faculty,” according to the department’s news release.
“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” DeVos said in a statement.
“This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues,” she continued.
The National Women’s Law Center along with more than 200 groups pushed the department in a March 25 letter to hold off from publishing the final rule while schools are scrambling to move online amid the pandemic.
The groups voiced concern that “moving forward now with a new Title IX rule would only exacerbate these challenges by diverting schools’ already sharply limited resources toward creating complex new policies and training employees on implementation, at a time when schools are already working to radically shift their programs and meet student needs, even while staff operate remotely.”
Nesbitt on Wednesday slammed the department for “deliberately” dropping a “2000-page document eviscerating survivors’ civil rights” amid the pandemic and during finals.
She added: “The he only mention of the pandemic that they made in the entire two thousand page document was that the effective date for the rule is August 14th, and that should provide ample time for schools to come into compliance, which I think is just a gross underestimate of the extent this has had on students in schools alike.”
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