Updated: May 22, 2020
Two years ago, the Trump administration’s Department of Education proposed new rules governing the way schools around the country handle sexual harassment and assault.
The proposal led to an outcry among survivors and their advocates: Because it would allow direct cross-examination of people who report sexual assault, many feared the changes would stop survivors from ever coming forward
“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” Education Secretary Betsy DeVos said in a statement announcing the rule changes. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process.”
“I was a victim of sexual assault at a time when there were no protections at all,” one commenter wrote, noting that the rules “clearly favor saving an organization from possible liability. These rules have nothing to do with what the right thing is to do.”
They require schools to allow direct cross-examination of both parties at Title IX hearings. The 2011 guidance discouraged direct cross-examination, as “allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.” Instead, some schools, like the College of New Jersey, allow accused students to pose questions to a neutral hearing administrator, who can relay them to the reporting student. Under the new rules, however, a lawyer or other representative of the accused will be allowed to directly cross-examine the reporting student. The rules do allow both students to sit in separate rooms and answer questions remotely, if either requests it.
New Title IX Rules Bolster the Rights of Those Accused of Sexual Assault
The new rules from the Trump administration also include sexual harassment in the campus sex discrimination law.
By Lauren Camera, Senior Education Writer
In a rare joint statement, Arne Duncan and John King, former education secretaries during the Obama administration, called the rule "part of an egregiously troubling pattern to continue to rollback civil rights for students, especially those most underserved."
"These changes unnecessarily burden victims of sexual assault, and can deepen trauma for students by increasing the chances of victims being exposed to their accused assailants," they said.
At issue was a 2011 letter from the Office of Civil Rights, which reminded campus officials of their obligation to investigate reports of sexual assault and outlined how they should do so. Though not binding, the directive pressed schools to lower the bar of proof from "clear and convincing" to "preponderance of evidence," set a 60-day deadline for responses to allegations and discouraged cross-examinations.
The final rules largely reestablish policies that existed prior to 2011, requiring schools to select one of two standards for evidence, either a "preponderance of evidence" or "clear and convincing evidence."
One of the most controversial aspects of the new rule: those accused of sexual assault have the right to cross examine those who accuse them. Though the rule shields students from coming face-to-face, many advocacy groups for survivors of sexual assault argue the thought of a cross-examination is enough to prevent people from ever reporting an incident.
The new rule also allows anyone to report incidents, including the victim, friends, parents or a bystander, and holds colleges and universities responsible for incidents that happen off-campus – though only if the school owns or is affiliated with the property.
That's an important distinction, many point out, since a significant number of incidents occur off-campus. A recent report from the New York State Education Department detailing incidents of sexual violence and their adjudication at every college and university in the state showed that 38% of Title IX complaints occurred off-campus.
Kenneth Marcus, assistant secretary for Civil Rights said the education department will allow "an unusually long" transition period and the rule will go into effect August 14, but college administrators said that timeline will be impossible to meet.
"The Department of Education is not living in the real world," Ted Mitchell, the president of the American Council on Education, which represents more than 1,700 colleges and universities, said in a statement. "As a result of the pandemic, virtually every college and university in the country is closed. Choosing this moment to impose the most complex and challenging regulations the agency has ever issued reflects appallingly poor judgment."