Adapted from a story by The Washington Post’s Laura Meckler and Susan Svrluga.
“This is the most controversial regulatory undertaking in the history of the Department of Education,” said Terry Hartle of the American Council on Education, which represents university presidents.
The proposed rule, published in November, replaced nonbinding guidance issued under the Obama administration. It narrows the cases that schools are required to investigate, creates a more limited definition of sexual harassment and allows — some say pressures — schools to create a higher legal standard in considering evidence.
It also codifies a number of rights for the accused, including the right to a live hearing with an adviser or attorney present, and the ability to cross-examine accusers.
Education Secretary Betsy DeVos said the rewrite was needed to balance the rights of assault survivors with those who are accused, and to inject more due process into a high-stakes process. She holds final say over the regulation. Even so, her rules could be overturned by Congress, with newly empowered Democrats pushing for action and eyeing a possible higher-education bill as one way in.
The proposal landed after years of rising pressure on universities to better respond to allegations of sexual assault, and amid the #MeToo movement, which brought increased scrutiny to harassment and assault allegations. DeVos says her priority is fairness.
“The fundamental focus from my perspective is ensuring that we are being fair and balanced for all students,” she said Wednesday at a forum sponsored by the Council for Christian Colleges and Universities.
The proposed regulation describes what constitutes sexual harassment or assault and how schools must respond. Advocates for assault victims said the new rules will allow assailants and schools to escape responsibility and discourage survivors of violence from reporting. Universities balked at new mandates for investigations and hearings. Supporters said the proposal rightly protects those who might be falsely accused.
What commenters said
The Education Department is required to read and respond to every comment submitted. The student government association of the University of Maryland unanimously passed a resolution condemning the proposal. Activists with the group End Rape on Campus urged supporters to file comments and said more than 5,500 people followed suit.
Meanwhile, the Foundation for Individual Rights in Education, a supporter of rights of the accused, said the proposal was packed with provisions that would improve the process.
Two advocacy groups reported, on the final day for comments, that the government website was having problems after supporters reported error messages when they tried to file comments. “We’re very concerned” assault survivors would lose another chance to be heard, after a process that had seemed dismissive of their views all along, said Sage Carson, manager of the group Know Your IX. A spokeswoman for the Education Department did not reply to a request for comment.
Others succeeded in filing comments on the final day, including the American Council on Education, which wrote on behalf of 60 higher-education associations. The groups welcomed some aspects of the regulation, such as a provision allowing for mediation between parties. But overall, they said that the proposal imposes “highly legalistic, court-like processes” that conflict with the educational missions of their schools.
“Colleges and universities are not law enforcement agencies or courts,” wrote Ted Mitchell, president of the council.
Leaders at the University of California said that the definition of harassment was too narrow, requiring harassment to be both pervasive and severe, and said the government should not require that schools offer parties the chance to conduct cross-examination during live hearings.
“This is an intimidating prospect for both parties and witnesses, but will particularly deter complainants wrestling with the already difficult decision of whether to come forward,” wrote University of California President Janet Napolitano and Systemwide Title IX Coordinator Suzanne Taylor.
Other comments packed a shorter, harsher punch, such as Suzy Jacobs of Burbank, Calif. Her comment read: “Leave Title IX alone To all who worry their sons will be falsely accused of assault raise them not to abuse. Betsy DeVos is an idiot.”
Some said the proposal was needed to restore balance to the system. One anonymous parent wrote in with the story of how her son was falsely accused of harassment and assault during his freshman year of college in Upstate New York and how damaging the experience was for him.
“The proposed regulations protect both complainants and respondents,” and are consistent with the country’s values, including the presumption of innocence, wrote a group of attorneys and educators who have represented students involved in such cases.
How Congress could step in
In the end, whatever DeVos does could be overridden by Congress, which may consider broad higher-education legislation this year.
Retiring Sen. Lamar Alexander (R-Tenn.), who chairs the Senate Education Committee, wants such a bill completed this year, a heavy lift on its own. Complicating the task: His Democratic counterpart, Sen. Patty Murray (Wash.), says she will insist on changes to the Title IX rules as part of any deal. Her staff laid out objections to the DeVos approach, including its narrow definition of sexual harassment and a provision allowing colleges to avoid responsibility for investigating complaints if they are not lodged with the right person.
“Addressing student safety, including the epidemic of sexual assault on campus, is a top priority,” Murray said in an interview this week. “If we are going to reauthorize [the Higher Education Act], this has to be part of it.”
