Students accused of sexual misconduct will get stronger due process protections under sweeping federal rules announced Wednesday by Education Secretary Betsy DeVos — changes critics warn will weaken the fight against campus sexual assaults.
The long-awaited rules make key changes to former guidelines from the Obama administration, including a tighter definition of sexual misconduct, reduced responsibility of colleges to investigate complaints and the right for advisors on all sides to cross-examine those involved.
DeVos has said the revisions are aimed at restoring fairness and rebalancing the rights of the accuser and accused in the contentious arena of campus sexual assault. Title IX prohibits sex discrimination in education by schools that receive federal funding.
“Today we release a final rule that recognizes we can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process,” DeVos said during a news briefing. She said the Obama-era rules amounted to a “failed approach” that resulted in “kangaroo courts” against accused students.
When the Obama administration cracked down on college sexual assault with tougher rules, more investigations and heavier sanctions against colleges deemed lax on the issue, hundreds of alleged offenders across the nation fought back with lawsuits saying their due process rights were violated in a rush to unfair judgments.
In California, some of those lawsuits have succeeded in forcing public and private campuses to strengthen due process rights for accused students. In one case last year, a state appellate court ruled that “fundamental fairness” required that accused students have a right to a hearing and to cross-examine their accusers. As a result, the University of California, California State University, USC, Occidental College and other campuses have made changes to their Title IX processes.
UC President Janet Napolitano said the “misguided” new rules sought to reverse hard-fought gains against college sexual misconduct but would not deter the UC system from continuing the fight against it.
“UC opposes these ill-conceived changes and, in spite of them, will continue our hard-won momentum through education, prevention, and processes that are fair and compassionate to all parties,” Napolitano said in a statement.
Mark Hathaway, a Los Angeles attorney who has represented more than 200 accused students, said he has continued to file lawsuits against California campuses alleging they have not fully complied with court directives for meaningful cross-examination and other due process protections. He said the new federal regulations would provide more specific instructions and additional pressure on campuses to conduct equitable Title IX proceedings.
“It’s been a long time coming for these protections to become federal regulations,” Hathaway said. “Colleges and universities will have to take a road that will be fair.”
Others, however, sharply criticized the rules and predicted an onslaught of lawsuits. Title IX experts and advocates for survivors of sexual assault warned that the prospect of an adversarial proceeding similar to a criminal trial, complete with cross-examination, would significantly deter the filing of complaints.
“This will likely cause a very dramatic chilling effect on the willingness of people to come forward and report sexual violence and discrimination,” said Brett Sokolow, president of the Assn. of Title IX Administrators.
DeVos issued the final rules despite pleas by hundreds of education and advocacy organizations, along with state attorneys general, to wait until the COVID-19 pandemic eased. The Department of Education unveiled its draft proposal in 2018 and received more than 124,000 comments about it as of last year.
Ted Mitchell, president of the American Council on Education, said the federal directive to implement the rules by Aug. 14 was “as cruel as it is counterproductive,” since colleges and universities reeling under the pandemic don’t have the bandwidth to undertake the massive and complex effort needed to change existing policies and launch campus-wide trainings.
“This package of mandates represents the worst in regulatory overreach,” he said in a statement.
DeVos, however, defended the timing, saying, “Civil rights really can’t wait.”
The National Women’s Law Center was one of many organizations vowing to challenge the rules in court.
“We won’t let DeVos succeed 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,” Fatima Goss Graves, president of the law center, said in a statement.
The final rules would for the first time require colleges and universities to allow cross-examination during mandatory live hearings in misconduct cases. Parties would not question each other directly, and a hearing officer must determine if questions are relevant.
Both sides would have equal opportunity to present witnesses and access evidence. And the person making the ultimate finding could not be the same person who investigated the complaint, addressing widespread criticism that Title IX coordinators often act as prosecutor, judge and jury.
The new rules will require UC campuses to change their current cross-examinations, which allow only indirect questioning by a hearing officer in order to minimize trauma to either side. Suzanne Taylor, systemwide Title IX coordinator, said the federal changes will require campuses to allow direct questioning by a student’s advisor — who could be an attorney.
She also said the tighter definition of sexual harassment will bar Title IX investigations of behavior that UC policies now prohibit. The new rules define sexual harassment as conduct so severe, pervasive and “objectively offensive” that it effectively denies a person equal access to the school’s educational program or activity.
Obama-era guidelines required that the unwelcome sexual conduct be severe or pervasive, rather than both. Taylor said a one-time instance of students forcing others to sexually touch them, for instance, would no longer be prohibited under Title IX rules. But campuses can still sanction such behavior as violations of student conduct codes.
UC officials welcomed, however, the first-time inclusion of dating violence, stalking and domestic violence in the definition of sexual harassment.
The new rules also allow campuses to raise the bar for substantiating allegations by using the higher standard of “clear and convincing evidence.” They may still use, however, the lower standard of “preponderance of the evidence,” which was recommended by the Obama administration and is widely used by campuses, including the UC and Cal State systems.