The Education Department’s new rules for how schools should respond to allegations of sexual assault and harassment are slated to take effect next month.
The issue is Title IX of the Education Amendments Act of 1972, which protects the rights of all students at schools funded by the federal government to receive an education free from discrimination on the basis of sex.
The new rules, which were finalized in May, affect the process by which schools investigate allegations of sexual harassment and assault under Title IX. The rules focus on the presumption of innocence and due process for the accused, which many say will make it much harder for victims to come forward and successfully make a case against the person who harmed them.
Schools will only be required to consider complaints that are brought under a formal process, not those that are discovered by residential advisors or professors. They will now use the definition of sexual harassment that the U.S. Supreme Court has determined for the workplace: “unwelcome conduct that is severe, pervasive and objectively offensive.” Schools will be required to hold hearings to allow the accused and the accuser to cross-examine each other to challenge credibility.
Schools will also have the ability to hold the accuser’s allegations to the “clear and convincing evidence” standard instead of the “preponderance of the evidence” standard. If they choose the “clear and convincing evidence” standard, the accused would have to prove their case to a standard higher than they would if they sued their abuser in court.
Furthermore, schools will largely be shielded from liability for mishandling accusations of rape or sexual harassment. In order for the school to be held liable, the victim would have to prove it was “deliberately indifferent” to the situation.
Student sexual misconduct survivors cry foul
The National Women’s Law Center is representing a group of plaintiffs, including at least seven students, who believe the new rules go too far in protecting the accused.
One of the plaintiffs is a fifth grader who claims to have been assaulted four times over two months. She fears that her elementary school will not be required to formally investigate the matter.
Another plaintiff is the survivor of a rape that took place in an off-campus apartment. She fears that her college will see the event as none of its legal business.
One plaintiff is a former student who still has an open case. She fears having to face her former professor in a live hearing, as is required by the new rules.
Supporters of the rule say that the previous, Obama-era rule made it too easy to accuse someone of serious sexual misconduct and pressured schools to side with the accuser. They say that the enhanced protections for the accused are only due process.
The student survivors, education groups and women’s rights groups that are suing claim that not only will the new rules make it much harder to bring an accusation but that the Trump administration bypassed the required legal process for passing the new rule. They also say the enforcement date of August 14 is unreasonable.
Do you think it is too hard or too easy for students to bring sexual assault and harassment cases against other students and faculty members? What do you think of the new rules?