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Betsy DeVos set to rewrite guidance on college sexual assault cases

Controversial regulation governing campus investigations set for release in coming days.

Education Secretary Betsy DeVos at the Conservative Political Action Conference in National Harbor, Md., on Feb. 22, 2018.
Education Secretary Betsy DeVos at the Conservative Political Action Conference in National Harbor, Md., on Feb. 22, 2018.Read moreBloomberg / Andrew Harrer

WASHINGTON – Education Secretary Betsy DeVos is set to release a sweeping overhaul of how colleges and universities must handle allegations of sexual assault and harassment, giving new rights to the accused, including the ability to cross-examine their accusers, people familiar with the matter said.

The proposal is set for release before Thanksgiving, possibly this week, and replaces less formal guidance issued by the Obama administration in 2011. The new rules would reduce liability for universities, tighten the definition of sexual harassment, and allow schools to use a higher standard in evaluating claims of sexual harassment and assault.

The rules stem from a 1972 law known as Title IX that bars sex discrimination at schools that receive federal funding. Most of the attention is on higher education, but the rules also apply to elementary and secondary schools. Once published in the Federal Register, the proposal will be open for public comment before being finalized.

The regulation lands amid a national debate over sexual assault, including whether Brett Kavanaugh should have been elevated to the Supreme Court after allegations surfaced that as a teenager he sexually assaulted a girl. He denied the accusation and was confirmed. Defending Kavanaugh, President Donald Trump declared it "a very scary time for young men in America" who faced the possibility of false claims.

Last year, DeVos rescinded the 2011 Obama guidance, denouncing it as overly prescriptive and lacking due process for the accused. She promised to write a regulation to replace it.

In a 2017 speech, she offered several examples of students she said were wrongly accused of wrongdoing under the old rules. She also said the rules poorly served survivors who were forced through multiple appeals because the system had "failed the accused."

"Schools have been compelled by Washington to enforce ambiguous and incredibly broad definitions of assault and harassment," she said. "Institutions must be mindful of the rights of every student."

The rules come after years of rising pressure on universities to better respond to allegations of sexual assault and other misconduct, and the proposal is likely to anger those who fear victim claims will be ignored or minimized. But the new direction has been welcomed by men's rights groups, who say the Obama guidelines were weighted in favor of the accusers, and by some university administrators who found the Obama version overly prescriptive and confusing.

The proposed rule will dodge a related controversial matter regarding the rights of transgender students. The Department of Health and Human Services had urged the Education Department to include a provision defining gender as someone's biological sex at birth. The DeVos proposal does not include that idea.

But several people said it is possible the Education Department will later issue a letter or fact sheet that asserts sex discrimination does not include complaints related to gender identity.

People with direct knowledge of the rules and others briefed on them spoke on the condition of anonymity because they were not authorized to publicly discuss the proposal. The department declined comment.

A leaked draft of the Title IX rules was published online in September, and five people familiar with the planning said this week only a handful of changes have been made to the rules since then.

The most significant change would guarantee the accused the right to cross-examine their accusers, though it would have to be conducted by advisers or attorneys for the people involved, rather than by the person accused of misconduct. If requested, the parties could be in separate rooms during the cross-examination, an administration official said. They said this was done to bolster the due process rights of the accused while assuring that victims are not directly confronted by their assailants.

The Obama guidelines had strongly discouraged use of direct cross-examination. The earlier DeVos draft allowed cross-examination but did not require schools to offer it as an option.

Recent court decisions requiring public universities to allow the accused the right to cross-examination when credibility is an issue figured in the administration's reasoning, two people said.

Some White House officials urged going further to include a mandatory cross-examination provision, two people familiar with internal discussions said. They said others in the administration argued that mandatory questioning was ill-advised, potentially traumatic for victims and not required in court hearings.

The proposal will include language barring questioning about an accuser's sexual history, one administration official said.

Jess Davidson, executive director of the advocacy group End Rape on Campus, said she made the case to the White House against allowing the parties to directly cross-examine each other, decrying it as "an extraordinarily cruel process" that would discourage victims from reporting assaults.

"Most survivors would be unwilling to go through a process that allows the person who sexually assaulted them to cross-examine them, and rightfully so," she said.

Others argue that colleges failed to protect the rights of the accused under the Obama guidelines. For instance, many schools used a single investigator to gather evidence and decide the case, without an opportunity for the accused to confront their accusers, said Robert Shibley, executive director of the Foundation for Individual Rights in Education, which supports more robust due process procedures.

"That leaves a huge window of opportunity for the biases of the adjudicator to make themselves felt," he said.

In another change, the proposal will allow both sides to appeal an adverse ruling, and not just the accused.

The rules will also give universities more flexibility in offering supportive measures to victims, for instance schedule changes or housing reassignments, in a change requested by survivor groups.

The most consequential provisions are unchanged since September.

The biggest may be the standard of proof required in assessing claims. Under the DeVos proposal, schools will be allowed to choose between "preponderance of the evidence" and the higher bar of "clear and convincing" evidence. The Obama guidelines had directed schools to use the "preponderance of the evidence" standard.

The regulation also will require schools to use the same standard in these cases as they use for other complaints, including those against employees and faculty. Many union contracts and other agreements with faculty mandate the use of a higher "clear and convincing" standard, several people said. So as a practical matter, most schools may be forced to apply the same higher bar for student complaints.

"It's intentional," said one person briefed on the rules. "It's DeVos saying, 'Yeah, you have a choice, but you can't have a higher burden of proof for unionized faculty.' "

In another major change from 2011 Obama guidelines, the new rules more narrowly define sexual harassment. It must be "unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school's education program or activity." Under Obama, harassment was "unwelcome conduct of a sexual nature."

And the rules raise the bar for when an institution can be held legally responsible for failing to investigate a complaint. Under the new version, the school must have "actual knowledge" of the allegation, made to an official who has the authority to "institute corrective measures." That means reporting the allegation to a professor or resident adviser is not sufficient to prove the university was aware of the matter because those people are not in a position to formally handle complaints.

Under Obama, the government expected schools to investigate if they knew or "reasonably should" have known about an incident. Universities thought that was overly broad.

Universities appreciate that the new rules will offer more clarity on their responsibilities, said Terry Hartle, a senior vice president for the American Council on Education, which represents university presidents. "What you want is schools being able to act in good faith without hearing that they're going to be second-guessed by government bureaucrats later on," he said.