The regulations will drastically alter the rights of victims and defendants, along with how universities can handle and resolve allegations. It is also sure to meet a court challenge from opponents, who accuse the government of gutting protections for victims of sexual assaults.
Understanding the New Regulations
The new regulations amount to a drastic rewrite of Title IX (the shorthand for federal gender equality in education laws) regulations that oversee how campuses must handle allegations of sexual assault and sexual harassment in order to secure federal funds.
DeVos’s proposed changes include:
- Requiring that universities adopt a judicial-like hearing process and prohibiting them from letting a single official investigate allegations and issue findings
- Allowing defendants to cross-examine their accusers in a live hearing, although not personally (each student would have their own advisor or attorney)
- Allowing universities to use either a “preponderance of the evidence” standard or a “clear and convincing evidence” standard for proceedings, as long as it is used consistently among students and employees
- Allowing universities to hold virtual hearings
- Requiring that defendants receive written notification of allegations and of their presumed innocence and banning penalties (such as suspension or expulsion) until the end of the case
- Holding universities accountable for off-campus incidents at university-sponsored sorority and fraternity houses, college-owned buildings, and sponsored trips
- Guaranteeing a right of appeal to both victims and defendants
- Offering protection from retaliation for victims who bring allegations forward
The proposed regulations additionally both narrow and expand the definition of sexual harassment. They narrow the definition by stating that conduct must be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”
But the new regulations also expand the definition of sexual harassment to include sexual assault, dating violence, domestic violence, and stalking and states that these acts are so objectively “severe, pervasive, and objectively offensive” that victims of those acts will not have to jump through extra hurdles to prove their claims.
DOE Says It’s About Fairness
In a statement, DeVos said the new regulations are necessary because “Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault.”
DeVos believes the new rules correct what due process and conservative organizations believe was overreach by the Obama administration, which unfairly punished the accused and ruined reputations without establishing guilt. Those regulations came about after the Obama administration discovered numerous instances of colleges failing to investigate or covering up claims of sexual assault.
She also argued that despite additional protections for defendants, the new regulations provide strong protections for accusers and holds universities accountable if they do not take accusations seriously.
Critics Are Unsatisfied
After the regulations were first unveiled in 2018, DOE faced a torrent of criticism, including more than 120,000 public comments on the proposed regulations.
While DeVos delayed the publication of the final rule to meet with victims’ rights organizations to try to address their concerns, many remain unconvinced.
“We will fight this rule in court, and we intend to win,” said Emily Martin, a vice president at the National Women’s Law Center. She said that DOE was reckless in ignoring evidence that many of the proposed changes would harm victims and increase the chances that they will not want to come forward.
So while the regulations go into effect in August, that is unlikely to be the last word on them.