New campus sexual misconduct rules may be proposed to bolster rights of accused

WASHINGTON — Education Secretary Betsy DeVos is preparing new policies on campus sexual misconduct that would bolster the rights of students accused of assault, harassment, or rape, lessen liability for institutions of higher education, and encourage schools to provide more support for victims.

The proposed rules, obtained by The New York Times, narrow the definition of sexual harassment, holding schools accountable only for formal complaints filed through proper authorities and for conduct said to have occurred on their campuses.

They would also establish a higher legal standard to determine whether schools improperly addressed complaints.

The new rules would come at a particularly sensitive time, as major institutions such as Ohio State University, the University of Southern California, and Michigan State University deal with explosive charges that faculty and staff have engaged in serious sexual misconduct. But for several years, higher education administrators have maintained that sexual misconduct rules pressed by the Obama administration unnecessarily burdened them with bureaucratic mandates that had little to do with assault or harassment, and men’s rights groups have said the accused have had little recourse.

Unlike the Obama administration’s guidance documents, the Trump administration’s new rules would have the force of law and could take effect without an act of Congress, after a public comment period.

Liz Hill, an Education Department spokeswoman, said Wednesday that the department was “in the midst of a deliberative process.” She added that any information obtained by The Times “is premature and speculative, and therefore, we have no comment.”

Last fall, DeVos rescinded a 2011 letter prepared by the Obama administration that outlined the responsibilities of schools and colleges that receive federal funding to address sexual misconduct. Victims rights groups praised the Obama-era guidelines for aggressively holding schools accountable for complaints of sexual harassment, assault, and rape that they said had often been downplayed or ignored. But critics contended they that too often trampled due process rights for accused students.

In announcing the rescission of the letter, DeVos assailed the guidelines as federal overreach that coerced schools into setting up quasi-judicial systems fraught with inconsistencies.

“The truth is that the system established by the prior administration has failed too many students,” DeVos said in September 2017. “Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved.”

DeVos has also criticized the Obama administration for imposing rules without following the legal processes, which would allow for a public comment period.

The department’s proposal would preserve much of the law that protects against sex discrimination, called Title IX, which for the past two decades has extended beyond gender-specific discrimination to include sexual misconduct as a form of denying students an access to an education. But for the first time, the federal government would go beyond guidance and recommendations to codify how it defines sexual harassment in the nation’s schools and the steps institutions are legally required to take to address it.

They could also be revised before they are formally published.

There is still dissension among staff within the Education and Justice departments about whether more of the standards from the 2001 guidance should be codified in the new regulations, and whether some of the provisions should apply only to higher education, according to sources familiar with the administration’s deliberations.

While the issue has centered on allegations against students on college campuses, it also applies to elementary and secondary schools and allegations against teachers, professors, and other staff.

“The Department recognizes that despite well-intentioned efforts by school districts, colleges and universities, advocacy organizations and the Department itself, sexual harassment and assault continue to present serious problems across the nation’s campuses,” the department wrote in the draft rule. “The lack of clear regulatory standards has contributed to processes that have not been fair to all parties involved, that have lacked appropriate procedural protections, and that have undermined confidence in the reliability of the outcomes of investigations of sexual harassment allegations.”

After the department rescinded the Obama letter and a subsequent question-and-answer document, it reinstated temporary guidelines, which drew from guidance issued in 2001 and a subsequent letter issued in 2006. The Obama administration built upon that guidance but had notable differences.

The new regulations cement some of the most debated policy positions in the interim guidance, such as allowing schools to choose the evidentiary standard — “preponderance of evidence” or “clear and convincing” evidence — to apply in determining whether accused students are responsible for alleged misconduct. They also leave it to schools to decide whether to have an appeals process.

The most protested part of the Obama administration guidance was the mandate that schools use the preponderance-of-evidence standard, the lower standard of the two, in determining whether those accused should be disciplined or expelled. The Trump administration rules propose that a school’s choice of evidentiary standard must apply to any investigation of civil rights violations.

The new rules would require that institutions only be held legally responsible for investigating formal complaints and responding to reports that school officials have “actual knowledge” of happening. A formal complaint is one made to “an official who has the authority to institute corrective measures,” not, for instance, a residential adviser in a dormitory.

The regulation contrasts with the standard, dating back to 2001, that a “school knows, or reasonably should know, about possible harassment.” College leaders have long complained that was too broad and held them accountable for allegations of which they were not aware.