U.S. Education Secretary Betsy DeVos

Education department issues new rules for schools on sexual harassment and assault

Nov. 16, 2018
The proposed rules, replacing ones created in the Obama administration, are written to give more rights to those accused.

U.S. Education Secretary Betsy DeVos has released a long-awaited rewrite of rules governing campus sexual harassment and assault allegations,

The Washington Post reports that the new rules reduce the number of cases schools must investigate and give more rights to those accused.

The proposed regulation replaces less formal guidelines created under President Barack Obama that tilt more toward accusers. DeVos rescinded the Obama measure a year ago.

“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” says DeVos. “That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined. We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function.”

Under the proposal, fewer allegations would be considered sexual harassment, and schools would be responsible only for investigating incidents that are part of campus programs and activities and that were properly reported. Accused students would be entitled to lawyers and cross-examination. In addition, schools are encouraged to offer supportive measures to accusers even if they do not file a formal complaint.

In anticipation of the new rules, advocates for women and others expressed concern that the rewrite will result in victims’ claims being ignored or minimized.

But the new direction has been welcomed by some university administrators, conservative legal scholars and men’s rights groups, who say the Obama guidelines were biased in favor of accusers.

Overall, the proposed regulation describes what constitutes sexual harassment or assault for the purpose of Title IX enforcement, what triggers a school’s legal obligation to respond to allegations, and how a school must respond.

The regulation also limits the circumstances that would mandate a school respond to an incident. The school must have “actual knowledge” of the allegations. At colleges and universities, that means the incident must have been reported to “an official with authority to take corrective action,” including the school’s Title IX coordinator. For K-12 schools, the report could go to any teacher.

In addition, the incident must have occurred within a school’s own programs or activities. That could include off-campus incidents if it were, for instance, in a building owned by the school, or at an event that the school funded, sponsored, promoted or endorsed.

Once a school knows about an allegation, it is required to take it seriously. But the regulation specifies that it will be punished by the Education Department only if its actions are “clearly unreasonable in light of the known circumstances.”

About the Author

Mike Kennedy | Senior Editor

Mike Kennedy, senior editor, has written for AS&U on a wide range of educational issues since 1999.

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