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DeVos’ school sexual assault policy boosts protections for the accused

Education Secretary Betsy DeVos has said the long-awaited rewrite is aimed at boosting due process for the accused, but advocates warn it will put up more barriers for students seeking justice. | Robert Berlin/The Daily Times via AP

The Trump administration revealed its plans on Friday for how the nation’s schools will be expected to handle allegations of sexual harassment and assault — a proposal almost certain to ignite a firestorm at a time when sexual misconduct allegations have repeatedly captured the spotlight.

Education Secretary Betsy DeVos has said the long-awaited rewrite is aimed at boosting due process for the accused, but advocates warn it will create more barriers for students seeking justice. The proposed regulations are intended to replace Obama-era policies under Title IX, the federal law prohibiting sex-based discrimination.

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DeVos’ revamp has been among her most controversial and anticipated moves in office and Democrats are sure to pounce on it as they wield newfound control of the House to call the secretary and her aides to testify on Capitol Hill.

The proposal marks a step into politically fraught terrain for the administration, as sexual misconduct claims — including against President Donald Trump’s pick for the Supreme Court, Brett Kavanaugh, and against the president himself — have galvanized activists in recent months.

DeVos offered the overhaul more than a year after she scrapped controversial Obama-era policies that pushed schools to do more to crack down on sexual violence on campus, but that critics said also prompted educators to trample due process.

The proposal echoes the debate that has repeatedly captured the nation since Trump took office, most recently when allegations from Kavanaugh’s high school and college years nearly tanked his nomination — leading the president to fret that “it’s a very scary time for young men in America when you can be guilty of something that you may not be guilty of.”

The administration touted its plan as a historic move that will for the first time create formal regulations — through a notice-and-comment process — for schools responding to sexual harassment claims.

DeVos said her focus is on “ensuring that every student can learn in a safe and nurturing environment.”

“That starts with having clear policies and fair processes that every student can rely on,” she said in a statement. “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.”

DeVos’ proposal includes language meant to assure due process: Accused students are presumed innocent until proven otherwise. They should be given written notice of the allegations against them and should have access to evidence gathered in investigations. Both parties would have the right to appeal disciplinary decisions.

The proposal includes a narrower definition of sexual harassment than in the past — as unwanted conduct that is “severe, pervasive, and objectively offensive” — and it would give both K-12 schools and colleges more latitude in how they handle allegations.

The rules would let schools use a higher standard of evidence for discipline decisions related to sexual misconduct, for instance. They would also hold schools responsible only for allegations involving misconduct on school-owned properties or at school-sponsored programs or events, a change the administration stresses isn’t meant to create an “artificial bright-line” between harassment occurring on or off campus.

The rules also maintain certain requirements meant to offer relief to students who have been harassed or assaulted. They require schools to respond meaningfully to all complaints and encourages them to offer so-called supportive measures — changes in class schedules or dorm room assignments, for example — even if the student does not want to file a formal complaint.

DeVos’ move to rescind the Obama guidance last year was among her most widely criticized actions since taking office. Drafts of the new rules that leaked in recent months drew intense pushback from women’s advocacy groups, who argued the DeVos rewrite will mean more obstacles for victims reporting assaults and could open the door for retaliation against students who do report.

Notably, the new rules would guarantee students the right to cross-examine their accusers, something survivors’ advocates say is deeply traumatizing. Students, however, can request to be in separate rooms during the questioning, which would be done through third-party advisers, not between students directly.

“This rule will return schools back to a time where rape, assault and harassment were swept under the rug,” said Jess Davidson, executive director of End Rape on Campus.

“It demonstrates Betsy DeVos and the Trump administration share the same attitude about assault that we saw from Senate Republicans during the Kavanaugh hearing — disparage and diminish survivors and discourage them from reporting.”

Men’s rights advocates and civil liberties groups, meanwhile, have cheered the administration’s efforts, arguing the Obama-era policies they are replacing — which weren’t formal rules though they were treated as such — led schools to trample the due process rights of the accused.

“It’s important that allegations aren’t ignored and aren’t prejudged,” said Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education, a civil liberties group that was among the most vocal critics of the Obama administration‘s guidance.

“It’s an unfortunate misconception that due process rights for the accused somehow undermine protections for complainants and those things are mutually exclusive,” she said. “Schools can have a process that is tremendously respectful to complainants and take those complaints seriously.”

The proposal kicks off a 60-day public comment period, and the administration may still tweak it before it becomes a final regulation, but it will carry the weight of law once it does.

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