By John Winer
As the new school year begins for millions of students across the country, there are new rules in place that impact how educators handle claims of sexual assault and harassment. The U.S. Department of Education recently set out new rules on how K-12 schools, colleges, and universities must respond to reports of sexual harassment and assault under Title IX, which protects people from discrimination based on sex in education programs. But school regulators, advocacy groups, past victims, and even politicians expressed concern over the fact that the new rules, which went into effect earlier this month, would also bolster protections for accused students and employees, as well as roll back progress made against sexual violence on school campuses.
In 2018, the Trump administration proposed new rules to govern the way schools handled sexual harassment and assault, which led to an outcry among survivors and advocates. It was announced that the proposed rules would allow direct cross-examination of people who report sexual assault, and there were fears that the changes would stop survivors from ever coming forward. In May, the long-awaited changes were announced, and the fear of many came true. The ruling requires colleges to hold live hearings and allow cross-examination when adjudicating sexual-misconduct complaints.
The new regulations also narrow the scope of complaints that colleges are required to investigate. During the Obama administration, sexual harassment was defined as “unwelcome conduct of a sexual nature”, but it was recently redefined as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The Department of Education claimed the changes were needed in order to safeguard all students, including those who are falsely accused of sexual misconduct.
According to CNN, Secretary of Education Betsy DeVos claimed the new regulations would help secure due process rights for students who report sexual misconduct and for those accused of it, by requiring colleges to provide live hearings and allowing students’ advisers to cross-examine parties and witnesses involved. Under the new rules, institutions must presume that those accused of sexual misconduct are innocent prior to the investigative and decision-making process. In 2017, Betsy DeVos had announced that she was planning to rescind the Obama-era guidance, claiming it caused colleges to over to enforce campus sexual misconduct and led to students being unjustly removed from campuses for false accusations. Ms. DeVos claimed she would give schools, from kindergarten to college, regulations, with the force of law, that balanced those rights.
In response, a number of women’s advocacy groups, victims, and leading Democrats, including House Speaker Nancy Pelosi and former Vice President Joe Biden, condemned the new rulings. According to the New York Times, students, women’s rights, and education groups joined a lawsuit filed against the Education Department, outlining how the new rules, which bolster the rights of the accused and relieve schools of some liability, stand to derail their cases or deter them from pursuing them altogether. The head of a sexual assault survivor advocacy group also argued that many of the updated policies were “severely limited” in their scope and that the changes would not cover instances of assault that could occur on study abroad trips, at off-campus events or at unofficial fraternity houses. “Students will have to go through repeated and escalating instances of sexual harassment in order for the school to respond, and it would have to impact their education to the point that they are either starting to fail or need to drop out.”
Although college officials had been anticipating the new rules, there are fears that the new mandates could stop sexual assault victims from coming forward. Without a doubt, these new changes can be devastating to victims of sexual misconduct because the new ruling ensures that any survivor who wants their case to move forward will have to undergo live cross-examination, no matter how traumatic it can be for them. Title IX serves as an important remedy to combat sexual violence for students on college campuses, but the new ruling would leave students with reduced protections against predatory behavior. In light of recent events involving sexual misconduct across universities including USC and Stanford, a better option would have been to implement changes to address the ongoing issue that is sexual harassment on college campuses.