Op-Ed: Betsy DeVos’ Title IX proposal can work, with some revisions

The public comment period has ended for Education Secretary Betsy DeVos’ proposal to reform how colleges and K-12 schools handle sexual assault and harassment under Title IX. DeVos must now consider more than 100,000 comments before issuing final rules.

When DeVos unveiled her plan last November, the proposed rules elicited polarized reactions, with some condemning them for “sweeping rape under the rug” and others praising them for reinstating “due process for the accused.” Both sides may be right.

I am part of a team at the American Civil Liberties Union that prepared comments on the proposal. But this issue is not abstract for me: I was sexually assaulted in college. Decades later, I still remember the police asking if I had been regularly asked out on dates.

I’ve dedicated my career to gender justice. Yet I’ve chosen to do so at the ACLU, an organization committed not only to equal rights for women, but also to fairness for the accused.

We believe institutions need to be accountable. We also believe equality won’t be achieved without fair processes in which complainants are heard and those who are accused have an opportunity to respond. Unlike many advocacy groups, which either criticize or support the DeVos proposal, we do both.

Our principal criticism is that the rules would roll back long-standing civil rights protections by substantially reducing schools’ obligation to respond to claims of sexual assault and harassment, which are forms of sex discrimination. For example, the rules limit what constitutes harassment to “unwelcome conduct that is severe, pervasive, and objectively offensive,” and they forbid schools from even investigating complaints that do not meet that exceedingly high standard.

Under DeVos’ reforms, then, a school could not investigate a threat of rape (severe, but not pervasive) or repeated harassment that is not extreme (pervasive, but not severe). The proposal would also forbid schools from investigating most complaints of student-on-student harassment or rape that took place off campus, even if it had continuing effects on campus.

DeVos’ definitions are far more stringent than those used in cases of racial harassment or discrimination, thus creating a different standard for sex discrimination.

Under the proposed rules, schools can require that sexual harassment and assault be proven by clear and convincing evidence. This is a higher standard than is used in cases of racial harassment and in civil proceedings generally. And it’s an inappropriate standard where both students have their education at stake. By imposing a double standard, the department would perpetuate sex discrimination in the name of fighting sex discrimination.

At the same time, the regulations would provide important safeguards for assessing claims of sexual harassment and assault in Title IX proceedings.

The ACLU has long advocated for robust protections for students facing disciplinary actions. The proposed regulations further that goal by guaranteeing a live hearing and cross-examination in university proceedings, by ensuring both parties have access to all evidence the school collects, and by allowing schools to defer disciplinary proceedings if criminal investigations and proceedings are imminent or underway.

We support these protections. But we also suggest some modifications. For instance, the Department of Education should require schools to offer lawyers to both sides when requested, and to have a properly trained lawyer officiate the process. This would ensure effective and non-abusive cross-examination and avoid the inequity of only one party having a lawyer.

We also favor strengthening the protections related to concurrent criminal proceedings. The regulations would permit a school to delay a Title IX hearing if the accused seeks a postponement because of an imminent or ongoing criminal proceeding for the same incident. We feel the regulations must require schools to stay proceedings in such circumstances.

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Otherwise, a student could be forced to compromise his defense in one proceeding for the sake of the other.

Postponements need to be accompanied by interim protections for the complainant, so we also recommend strengthening the provisions for such protections. These protections should apply in all university hearings where serious penalties are at stake, not just sexual harassment or assault cases. Yet DeVos has proposed them only in this context.

Charges of sexual harassment and assault should be treated with the same gravity as any other case with significant consequences for education. Claims of discrimination need to be heard, not ignored. And they need to be heard in a process that’s fair to both sides.

Louise Melling is a deputy legal director of the American Civil Liberties Union.

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