Recently proposed rules on how colleges and universities should handle sexual misconduct complaints brought strong and opposite reactions: Victims advocates say the changes to current guidance are an attack on Title IX and would reverse years of work and the spirit of the MeToo movement. Others argue that change is needed because some schools went too far to punish the accused without due process.
Our view of Education Secretary Betsy DeVos' plan is mixed; some elements of the proposal are improvements, while others are problematic.
The new regulations would narrow the definition of sexual harassment and reduce the types of incidents that schools must investigate, require colleges and universities to hold live hearings involving cross-examination and allow the institutions to select a higher standard of proof.
Current guidance defines an offense as "unwelcome conduct of a sexual nature." The proposal defines it as unwelcome sexual conduct that's so severe it effectively denies the victim access to the school or its programs. Currently, the "preponderance of the evidence" standard prevails, meaning the allegation is "more likely than not" true. The new proposal would allow for a "clear and convincing" standard, meaning the claim is highly probable.
The Trump administration's version would roll back many provisions of the Obama-era "Dear Colleague'' letters, which urged schools to treat sexual harassment and violence as discriminatory under Title IX — the 1972 federal directive that prohibits gender-based discrimination at schools that receive federal funds. Title IX is probably best known for breaking down barriers to girls and women participating in school sports.
DeVos' changes rightly seek to ensure that both the accused and the accuser are heard. There have indeed been a few cases of accused students successfully suing universities for suspending or expelling them unfairly. Locally, both the University of Minnesota and St. Olaf College are facing lawsuits from current or former students who argue that they did not receive due process after being accused of assault.
However, other parts of the proposal could give schools greater latitude to return to times when complaints about harassment or assault were too often ignored. One provision, for example, amounts to "what happens off campus stays off campus," suggesting that institutions only have jurisdiction when offenses occur in school buildings or on school grounds.
But many incidents take place online, or at bars, fraternity houses or off-campus housing. Schools should still respond to such complaints. They involve student code-of-conduct violations whether they occur in a classroom or in a building across the street from campus. Colleges can and should hold students accountable for behavior that affects other students.
The provision in the new rules requiring hearings would allow for cross- examination by the parties' lawyers or advisers. Our concern, shared by victims advocates and many educators, is that such a hearing might discourage a victim from filing a complaint or further traumatize a victim. The decision whether to use cross-examination should be left up to individual colleges and universities.
Before the Obama administration letter, studies showed that too many college administrations ignored or downplayed sex assault allegations — putting concerns about bad publicity ahead of supporting victims. Those guidelines helped to push many colleges into taking assault allegations seriously and prompted many institutions to set policies.
Through their interpretation of any new federal rules, colleges and universities shouldn't undermine or undo that progress.