The U.S. Department of Education has revised rules governing the way schools and colleges are to process sexual assault cases, a move Secretary Betsy DeVos proudly announced will provide more rights to the accused.

DeVos said the newly adopted rules of Title IX will replace the polices put in place by the Obama administration that she said placed too much pressure on schools to disregard the rights of accused students.

The new rules have shrunken the scope of the definition of sexual harassment, which now will only refer to misconduct that is “so severe, pervasive, and objectively offensive” that the victim suffers impediment to education.

Under the Obama administration, the definition of sexual harassment included a variety of misconduct that “interferes with or limits” the victim’s access to the school. Examples of such misconduct could include “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature.”

Behavior that occurs on campus and at other school-related sites, including academic conferences and fraternity houses, are all covered under the final sexual harassment rule, which also mandates the schools provide investigations of dating violence and stalking. The final rule explains steps to take extrajudicial actions, including no-contact orders, changes in housing arrangements or changes in class assignments.

Under the newly approved policy, any student who is either accused of sexual harassment or is a victim of sexual harassment must receive equal access to all evidence collected through the school administration’s investigation and be allowed to bring a lawyer or other advisory person to the proceedings.

One of the main new elements of the proceedings is the requirement of all colleges to allow students on both sides of the case to ask each other questions during live hearings on campus. Such questioning would be accomplished through the use of representatives to ensure the accused and the victim are not forced into a direct confrontation with each other, but victims-rights advocates say the policy will hinder some victims from coming forward for fear of having to confront the accused.

DeVos has criticized campus procedures as “kangaroo courts” that did not adequately protect those who were facing allegations of sexual harassment.

National Women’s Law Center Response to U.S. Department of Education

Fatima Goss Graves, president and CEO of the National Women’s Law Center, released a statement condemning the U.S. Department of Education’s move that she says will weaken sexual assault protections under Title IX. 

Graves alleged Betsy DeVos and the Trump Administration are making schools more dangerous for everyone, especially during the global pandemic.

“And if this rule goes into effect, survivors will be denied their civil rights and will get the message loud and clear that there is no point in reporting sexual assault,” said Graves. “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug. And we won’t let DeVos success in requiring schools to be complicit in harassment, turning Title IX from a law that protects all students into a law that protects abusers and harassers. We will fight this unlawful rule in the courts.”

Title IX of the U.S. education amendments was enacted into law in 1972 to ensure that schools that receive federal funding are required to provide fair and equal treatment of the sexes in all areas of education, including athletics. Title IX prohibits sexual violence, sexual harassment and assault at schools and requires all students to be treated equally, regardless of gender.

According to The Association of American Universities 2019 survey, the rate of non-consensual sexual misconduct is 13 percent in colleges.

More than 65 percent of students said it was “very” or “extremely” likely that school administrators would take a report of sexual assault seriously, only 45 percent of those who had reported such an experience agreed.

Some school sexual abuse class action lawsuits against coaches and educators have made headlines over the years, but some such lawsuits involve an individual plaintiff and a single accused defendant.

This article is not legal advice. It is presented
for informational purposes only.