Last week, the federal Department of Education issued proposed rules for handling sexual assault cases in schools, drastically revamping guidance from the Obama administration. The proposal is based on federal law, Title IX, which bars sex discrimination at schools that receive federal funding. While most of the attention is on higher education, the proposal also applies to elementary and secondary schools. The proposed rules follow up on Department of Education Secretary, Betsy DeVos’s, promise to restore rights to the accused by affording the accused additional due process and revising the definitions of sexual assault and harassment. Opponents of the proposal fear the changes will deter victims from reporting cases, stalling the recent momentum of anti-sexual assault campaigns, such as #MeToo.
The Major Changes
Cross-Examination of Accuser: The proposal permits the cross-examination of both students, which used to be optional. While cross-examination can be an effective way to get to the truth and some have pushed for the change, others feel it will intimidate and silence victims.
Standard of Evidence: The proposal changes the standard of evidence that schools may use in evaluating a claim. The Obama guidance suggested that schools use the preponderance of the evidence standard in determining whether a claim is true. The current proposal allows schools to use either the preponderance of the evidence or the clear and convincing evidence standard.
Definition of Sexual Harassment: The proposal narrows the definition of sexual harassment from “unwelcome conduct of a sexual nature” to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” The revised definition is expected to make it more difficult for the accused to prove a claim.
Liability of Schools: A school’s liability may be reduced under the proposed rules due to the requirements for reporting. That is, a claim must be reported to a school official who has the authority to help (not necessarily a trusted professor, coach or resident advisor) and schools only are required to investigate incidents that have occurred on campus or during school-sponsored events (not at off-campus parties or outside of bars). Further, under the prior Obama guidance, schools were liable for claims if they knew or “reasonably should” have known about an incident, while the current proposal states that schools must have “actual knowledge” of the incident.
The balance of protecting the rights of the accused with encouraging victims to report sexual violence continues to be at the forefront of debate in our country. Opponents of the proposal fear that victims will be intimidated by and deterred from reporting sexual violence, as they could be subject to cross-examination and liability will be more difficult to prove. Proponents of the proposal argue that it returns rights back to the accused, who could be found guilty more easily under the former guidelines. The public has 60 days to comment on the proposal, after which the administration may make changes before the proposal is finalized.