To investigate and make decisions on complaints, schools will have to use trained personnel to evaluate evidence, though they could offer “informal resolution” options to involved individuals. Schools will also have their choice of using two standards of evidence to make decisions: a “clear and convincing” standard or a less-restrictive standard that relies on the “preponderance of evidence.”
DeVos said that the rule came after years of research and input, and will ensure a process for deciding claims that is fair to all students.
“We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues,” DeVos said.
The Obama administration had laid out guidance pushing schools to resolve an epidemic of complaints of sexual assault and harassment. But DeVos scrapped the Obama-era policies, saying they were unfair to everyone involved, and she now wants to balance the scales of justice with clear, formal rules.
The White House described the policy change as a way to”restore fairness and due process to our campuses,” arguing that colleges and universities “have often stacked the deck against the accused, failing to offer protections such as a presumption of innocence or adequate ability to rebut allegations.”
“With today’s action and every action to come, the Trump administration will fight for America’s students,” Trump said in a statement. The regulations are effective Aug. 14, 2020.
Joseph Roberts, a law student, was expelled from Savannah State University after being accused of sexual assault three weeks before his graduation. Roberts, who said he was never afforded a hearing, in an interview praised DeVos’ new rule.
“Betsy DeVos, today she’s a hero,” Roberts said. “Today is a reaffirmation of what I and other families knew the entire time: We were just victims of the previous administration’s policy.”
The rule expands the government’s definition of “sexual harassment” to include sexual assault, dating violence and stalking. Schools must respond to misconduct that occurs at events where the institution “exercised substantial control” over both the accused and the context where the misconduct occurred.
DeVos said would include school field trips, academic conferences or other school-sponsored travel. The department also said the rule also holds colleges responsible for off-campus harassment at houses owned or under the control of school-sanctioned fraternities and sororities.
The decision by DeVos to move ahead on the rule sparked intense objections from leaders in higher education that it should have been delayed while colleges struggle to reopen their campuses and stem financial losses.
Ted Mitchell, the head of the American Council on Education and a former top Education Department official during the Obama administration, called DeVos’ refusal to delay the regulations during the pandemic “as cruel as it is counter-productive.”
“Choosing this moment to impose the most complex and challenging regulations the agency has ever issued reflects appallingly poor judgment,” he said.
Mary Sue Coleman, president of the Association of American Universities, said, “While we have engaged extensively with the Education Department on the content of the regulations and appreciate the department’s efforts to protect our students from sexual assault and misconduct, now is not the time to implement this extensive and complex change in federal regulations.”
Peter McPherson, the president of the Association of Public and Land-grant Universities, echoed those concerns. “The timing of the release of the final rule could not have been worse,” he said in a statement. “We know these regulations are not the end. Undoubtedly, there will be litigation and some members of Congress will consider legislative action.”
But some lawyers who represent students accused of misconduct and other proponents of the rule said the government should move forward because Title IX coordinators on campus have more time to put it in place while students are away. They dismissed calls to delay as an excuse by opponents of DeVos’ policy.
“Title IX officers don’t have more to do during the coronavirus pandemic. In fact they have less to do because students aren’t on campus and therefore aren’t being victimized on campus,” said Jennifer Braceras, director of the Independent Women’s Law Center and a former commissioner of the U.S. Commission on Civil Rights. “The whole notion that the federal government should somehow delay due process for students, because of the coronavirus pandemic is just a complete ruse.”
The new rule has been among DeVos’ most hotly contested moves in office, because the draft version would allow for victims to be cross-examined, raise the standard of proof in such cases and let schools offer mediation. Schools have also pushed back, saying the proposal would make disciplinary hearings into quasi-courtrooms.
But the proposal has been cheered by advocates for the accused, as well as conservatives and some civil liberties groups, who argued the guidance from the Obama administration allowed schools to steamroll due process rights of the accused.
“The new rule puts an end to both campus kangaroo courts and the tolerance of rape culture. We can and we must, and we will put an end to practices that tolerate either sexual assault or administrative injustice,” Kenneth Marcus, the assistant secretary of education for civil rights, told reporters on Wednesday.
The release of the final Title IX rule comes as the Trump administration runs up against a potential government-wide deadline to publish regulations so that they will be shielded from a fast-track reversal tool that Democrats could use if they win the White House and control of Congress in the fall.
Major rules that are finalized by the Trump administration during the final 60 legislative days of the House or Senate this year would potentially be vulnerable in the next Congress under the Congressional Review Act. That so-called “lookback period” could begin this month, depending on the congressional calendar for the rest of this year, which is difficult to precisely predict in most years, much less when the coronavirus pandemic has upended how Congress meets.
Lawsuits challenging the rule are likely from survivor advocates, who sued DeVos over a temporary set of guidelines the department issued after scrapping the Obama-era policy. A draft of the DeVos proposed rule drew more than 124,000 comments, including a wave of personal attacks aimed at the secretary.
“Betsy DeVos and the Trump administration are dead set on making schools more dangerous for everyone —even during a global pandemic,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center. She vowed that “we will fight this unlawful rule in the courts.”
“All this as students struggle to find housing, keep up with online classes, and pay rent as the unemployment rate soars,” said Sage Carson, the manager of Know Your IX, a victims advocacy group. “What these students need is support, not another attack from DeVos and Trump.”
The National Women’s Law Center aims to file a lawsuit challenging the rule “within weeks,” said Emily Martin, NWLC vice president for education and workplace justice.
The group is reviewing the more than 2,000 page rule, Martin said, and says one central argument to challenge the rule is that it’s in violation of the Administrative Procedures Act. “The administration in promulgating this rule ignored the evidence that demonstrated the ways that it would harm survivors of sexual harassment and sexual violence,” she said.
House Speaker Nancy Pelosi slammed the rule as “callous, cruel and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.”
“Democrats will not stand silently as the Trump Administration attacks the civil rights of students and will fight to ensure that every college campus is free from the fear and threat of discrimination, harassment or violence,” she said in a statement.
Congressional Republicans, meanwhile, praised DeVos’ final regulation. Rep. Virginia Foxx, the top Republican on the House Education and Labor Committee, alluded to House Speaker Nancy Pelosi’s defense last week of former Vice President Joe Biden against allegations of sexual assault by a former staffer, Tara Reade. Biden denies the allegations.
“Our highest priority is to ensure that all students can pursue education free from discrimination, harassment, and sexual violence,” Foxx of North Carolina said in a statement. “But as the Speaker noted last week, those accused of sexual assault are also owed due process, and we owe it to all students to ensure that campus judicial procedures operate consistently with our nation’s fundamental beliefs in fairness.”
Sen. Lamar Alexander, the chair of the Senate HELP Committee, said that the new policy “respects and supports victims and preserves due process rights for both the victim and the accused.”
Alexander also praised DeVos for writing a new Title IX regulation instead of relying on guidance to colleges, which is how the Obama administration pursued its crackdown on campus sexual assault. That process under the Obama administration, Alexander argued, allowed the Education Department to issue “edicts” without appropriate public input.