WASHINGTON – Education Secretary Betsy DeVos is preparing new policies on campus sexual misconduct that would bolster the rights of students accused of assault, harassment or rape, lessen liability for institutions of higher education and encourage schools to provide more support for victims.
The proposed rules, obtained by the New York Times, narrow the definition of sexual harassment, holding schools accountable only for formal complaints filed through proper authorities and for conduct said to have occurred on their campuses. They would also establish a higher legal standard to determine whether schools improperly addressed complaints.
The new rules would come at a particularly sensitive time, as major institutions such as Ohio State University, the University of Southern California and Michigan State University deal with explosive charges that members of their faculty and staff have perpetrated serious sexual misconduct. But for several years, higher-education administrators have maintained that sexual-misconduct rules pressed by the Obama administration unnecessarily burdened them with bureaucratic mandates that had little to do with assault or harassment, and men’s rights groups have said the accused have had little recourse.
Know Your IX, a national youth-led advocacy group to end sexual violence in schools, blasted the proposed guidelines for what it feared would be a setback to victims’ rights.
“The Trump Administration’s proposed rules have one clear goal: to let schools off the hook for covering up rape and sexual harassment,” Sage Carson, a Know Your IX manager, wrote in a statement. “These draft rules would enable systematic sexual assault at schools like Ohio State and Michigan State … while letting schools avoid liability by deterring reports of sexual assault.”
Unlike the Obama administration’s guidance documents, the Trump administration’s new rules will have the force of law and can go into effect without an act of Congress, after a public comment period.
Liz Hill, an Education Department spokeswoman, said Wednesday that the department was “in the midst of a deliberative process.” She said any information obtained by the Times “is premature and speculative, and therefore, we have no comment.”
Last fall, DeVos rescinded a 2011 letter prepared by the Obama administration that outlined the responsibilities of schools and colleges that receive federal funding to address incidents of sexual misconduct. Victims-rights groups praised the Obama-era guidelines for aggressively holding schools accountable for complaints of sexual harassment, assault and rape that they said had often been downplayed or ignored. But critics contended that too often they trampled due-process rights for accused students.
DeVos’ proposal would preserve much of the law that protects against sex discrimination, called Title IX, which for the past two decades has extended beyond gender-specific discrimination to include sexual misconduct as a form of denying students access to an education. But for the first time, the federal government would go beyond guidance and recommendations to codify how it defines sexual harassment in the nation’s schools and the steps institutions are legally required to take to address it.
They could also be revised before they are published.
But in the short term little may change on campus, said Kathryn Nash, a Minneapolis attorney with Gray Plant Mooty who has worked with DeVos’ deputies to provide input on new regulations.
“Because these are proposed regulations, institutions will not need to overhaul their systems to come into compliance,” said Nash, a leading national expert on campus sexual assault. She noted that 2014’s Violence Against Women Act already requires universities to conduct fair and thorough investigations. “Under the proposed regulations schools will still have the right to choose the evidentiary standard [by which they adjudicate cases].”
The University of Minnesota released a statement Wednesday saying that it would review the policy once it is final and “determine whether any changes to our processes are warranted.”
Star Tribune staff writer Liz Sawyer contributed to this report.