Last November, the Department of Education released new proposed regulations regarding campus sexual assault and sexual harassment. They will replace Obama era guidance that the Trump administration has already rescinded. The notice and comment period for these regulations ends shortly, on January 28th. However, these comments are not likely to be the last words on this. Congress is sure to weigh in. If Congress passes new legislation, that would trump (no pun intended) the new rules from the Education Department.
In Congress, Democratic reaction has been predictable, with Democrats characterizing the proposed rules as a “shame” and a “betrayal” of sexual assault victims. The new Democratic majority in the House is promising to block the new rules, although it is not clear how just one house of Congress can do that.
Democrats are right to protest a good deal of what is in these rules, but the truth is that the proposed rules contain some excellent changes as well as some terribly counter-productive ones. Democrats should reach out to Republicans, especially Senators such as Susan Collins and Lisa Murkowski, in order to pass a bi-partisan bill through Congress.
There is no question that changes need to be made to the way colleges handle sexual assault allegations. There are just too many egregious violations of fair process by Title IX investigators and panels. For example, an appellate court in California called the University of California San Diego’s process a “kangaroo” court, saying that they were “at a total loss why anybody interested in a fair and accurate outcome would do something like that”.
This lack of due process hurts sexual assault survivors as well as accused students. Student survivors have appeared before campus tribunals that hadn’t seen their rape kit results (or the reports of the trauma nurse), and they have been denied access to evidence. The proposed new rules would require that students be given a hearing, a clear statement of the charges, and adequate time to prepare for that hearing. Both students will have access to evidence that is being considered by the panel. There have been many cases where students were denied these basic safeguards, and these new rules are a clear improvement over the status quo. Democrats should support these changes.
More controversially, the proposed new rules allow both parties in a university hearing to be accompanied by advisers – who may be attorneys. Many people have expressed concern that lawyers will slow the process with aggressive objections and delay tactics. These concerns are overblown. Attorneys are allowed at all kinds of civil hearings that decide matters ranging from denial of disability and veteran’s benefits to issues of child abuse and neglect. There is no evidence that attorneys gum up the process. Quite the opposite, attorneys can help universities avoid litigation by pointing out procedural defects and ambiguities before parties resort to expensive and time-consuming litigation. Without representation, survivors as well as accused students can be steamrolled by poorly trained committees. Expecting college students to spot inconsistencies and ambiguities in the other side’s testimony is unrealistic. Allowing students to be represented by advisers, including attorneys, is a step forward and Democrats should support this change.
Even more controversially, the proposed rules allow cross-examination of the student bringing the charges. This is dangerous ground. Sexual assault is extremely traumatic, and the prospect of being cross-examined can discourage reporting. Under-reporting is perhaps the single biggest issue in fighting sexual assault on campus. On the other hand, a fair hearing is almost impossible without cross-examination. There have been cases where the accusing student sent text messages or other messages that strongly imply the innocence of the accused student, yet did not have to answer any questions about those messages. In one case, the accusing student texted her friend that the young man she slept with was her roommate’s boyfriend and if her roommate found out she “would literally never speak to me again.” She also texted that the young man was “too drunk to make a good lie out of sh-t”, and “It’s pretty obvi [obvious] I wasn’t an innocent bystander.” She did not have to answer questions about these texts and the accused student was expelled.
The proposed rules have numerous protections in place to prevent abuse of cross-examination, such as incorporation of existing basic principles of rape shield laws that prevent irrelevant questions about the survivor’s sexual history. They allow the accusing student to demand that the accused student be out of the room during cross-examination. Furthermore, they allow for cross-examination of other witnesses such as the investigators. There is no good reason to shield investigators from cross-examination, yet this happens all the time. As I mentioned in my last post, in one recent case, the university detective investigating a case was reputed to be having an affair with the accusing student. She posted on social media, “My detective loves me.” The detective did not have to answer any questions about this or even appear at the hearing. DeVos is right to change this and Democrats should agree to this change.
Unfortunately, there are also parts of the proposed rules that are dangerously counterproductive. Universities will not be required to respond to sexual assaults of a student (even if committed by another student), if the assault took place at an off-campus party or someone’s off-campus apartment. (Title IX may still cover off-campus parties under the purview of the university such as fraternity parties.) It is beyond belief that such an assault would not severely impact the survivor’s educational environment. Protecting against this is at the very core of Title IX’s purpose. Democrats should demand that this new rule be eliminated or modified.
Furthermore, the proposed rules reward willful ignorance. If adopted, universities will be responsible for responding to assaults only when they have actual knowledge about the assault. They will not be held responsible for responding to assaults that they should have known about through effective reporting mechanisms. It is commonplace to hold institutions responsible under a “knew or should have known” standard and there is no good reason to make an exception here. Democrats should stand firm on this issue.
The proposed rules also define sexual harassment in a dangerously narrow fashion. The proposed regulation defines it as “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.” This definition comes from court rulings regarding workplace harassment and is too narrow for an educational context. Surely, harassment that significantly degrades a victim’s education, as opposed to denying educational access altogether, should qualify as harassment. Again, Democrats should seek to moderate this rule.
The American people want the two parties to work together to address real problems. This is an excellent opportunity for Democrats and Republicans to do just that. This does not need to be a partisan issue. There is plenty of room for improvement to the status quo and plenty of credit to go around if the two sides can work together to get this done.
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