More than a year after the Education Department rescinded Obama-era sexual assault guidelines, it released its proposal for how universities should handle reports of campus sexual assault.
The rules announced on Friday narrow the definition of sexual harassment, allow universities to use a higher standard of proof to decide whether the accused are responsible for sexual assault, and make it more difficult for universities to be held legally accountable for failing to investigate a complaint.
Last September, the department rescinded the Obama administration’s 2011 Dear Colleague letter that clarified existing protections for campus sexual assault survivors. A study by researchers at the the Barry University Dwayne O. Andreas School of Law reviewed the 16,376 public comments filed with the U.S. Department of Education before it rescinded the guidance and found that 11,528 of the comments urged the department to uphold the 2011 letter. The department then released interim guidance that was widely criticized by experts on campus sexual assault and civil rights protections, such as Know Your IX, a sexual assault survivor advocacy group.
Michele Landis Dauber, a Stanford University law professor, told ThinkProgress at the time, “This is cruel. It’s heartless. It’s designed to derail the education of victims and discourage reporting. Basically, the message to victims is ‘go away and suffer in silence. You’re on your own.'”
Along with the choice to allow schools to use a higher standard to decide responsibility for sexual assault, that interim guidance replaced a 60-day timeframe for prompt investigations with no fixed timeframe, allowed colleges to permit only the accused to appeal a decision, and let schools to decide to use mediation for survivors to “work things out” with the accused.
Some of the changes that were proposed earlier in the year and are part of the interim guidance have been changed.
Under the new rules, the person accused of sexual assault will be able to cross-examine the person who said they assaulted them but not directly. This would be done through attorneys or advisors. Universities would have to offer that as an option. This was not part of the interim guidance, and a draft of the final policies reported on by The New York Times in August did not require universities offer it.
According to The Washington Post, White House officials actually wanted mandatory cross-examination but other administration officials disagreed and said it would be traumatic for survivors. The proposal will also now let both parties appeal a decision instead of only the accused, as the interim guidance said. It also does not allow questions about the sexual history of the person who made the complaint.
The rules read, “Proposed section 106.45(b)(3)(vii) requires institutions to provide a live hearing, and to allow the parties’ advisors to cross-examine the other party and witnesses” for higher education. For K-12 schools, there is an option of a live hearing but not a requirement.
What won’t change from draft rules the Times reported on in August is that universities can still choose a higher standard for deciding responsibility in sexual assault cases. The Obama-era guidance clarified that universities should be using the preponderance of the evidence standard, which means that it’s more likely than not that the accused is responsible for sexual assault. The Bush administration also called it the appropriate standard under Title IX. However, the department now says universities can also use a clear and convincing evidence standard, which means evidence must be presented that will lead people to believe there is a high probability that the victim was sexually assaulted. The Post reported that since the final proposal will require universities to apply the same standard for students as they do for faculty, this will essentially mean universities end up using the higher standard since that is what is in a lot of faculty’s union contracts.
When responding to criticism of no longer requiring 60 day for prompt investigations, the department wrote, “Some [schools] felt pressure in light of prior Department guidance to resolve the grievance process within 60 days regardless of the particulars of the situation, and in some instances, this resulted in hurried investigations and adjudications, which sacrificed accuracy and fairness for speed.”
And as the media reported in August, the department has decided to narrow the definition of sexual harassment, which has been used in sexual harassment cases for decades. Instead of using the definition, “unwelcome conduct of a sexual nature,” the department will now define it as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person access to the school’s education program or activity.”
Jess Davidson, executive director of End Rape on Campus wrote of this narrower definition, “In other words, survivors may have to endure repeated and escalating harassment before they can file a Title IX complaint obliging their school to act, since their trauma would have to be so severe that they no longer have access to their education.”
In addition to these additional barriers for sexual assault survivors who wish to see their assailant found responsible, survivors would also endure more struggles to hold universities accountable. Schools can only be held responsible for reports of which school officials have “actual knowledge,” and it must be to a high level enough official who can “institute corrective measures.” The previous standard, which was used for almost 20 years, was that a school “reasonably should know” about alleged harassment.
In its proposal, the department also mentioned easing requirements for educational institutions controlled by religious organizations that are seeking religious exemptions. The department wrote that these institutions are not required to seek assurance of its religious exemption by submitting a written request to the Assistant Secretary. Even if a university did not seek assurance of an exemption, it can still invoke its religious exemption during the course of an investigation into the school by the department, the proposed rules explained.
“The Department should not impose confusing or burdensome requirements on religious institutions that qualify for the exemption,” the department wrote in the proposal.