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Betsy DeVos releases new rules on sexual harassment and assault that expand rights of the accused
Education Secretary Betsy DeVos visits a classroom at the Edward Hynes Charter School in New Orleans on Oct. 5. Gerald Herbert/AP

The U.S. Department of Education, headed by Education Secretary Betsy DeVos, has announced new Title IX rules governing how schools receiving federal funding handle sexual harassment and assault allegations, which include expanding the rights of the accused party.

The proposed rules, which will go into effect after a public comment period, are “intended to promote the purpose of Title IX by requiring recipients to address sexual harassment, assisting and protecting victims of sexual harassment and ensuring that due process protections are in place for individuals accused of sexual harassment,” the Education Department noted in a summary.

They replace previous Obama-era guidelines, which DeVos rescinded in September 2017. Unlike the previous Obama-era guidelines, the new rules will have the full force of law if enacted.

The new guidelines will raise the bar for what constitutes as sexual harassment, which the Obama guidelines defined as “unwelcome conduct of a sexual nature.” It is now defined 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.”

Schools also now must have “actual knowledge” of the incident to be required to respond to the allegation, meaning students must report the incident to an “an official with authority to take corrective action.” The incident must also have taken place within a school’s programs or activities for the school to be required to respond to the allegations.

Under the new guidelines, schools must now offer full due process protections to the accused, including the right to a lawyer and cross-examination by a third party, and are prohibited from imposing measures that would “burden” an accused student while they are under investigation.

The Department of Education is also raising the burden of proof required to convict the accused, from requiring “preponderance of the evidence” to “clear and convincing evidence.” Though the guidance officially noted that schools can choose between either standard, they cannot have the lower standard in place for students if “clear and convincing evidence” is required for accusations against faculty members and employees.

The new rules do offer rights to the accuser as well as the accused, including requiring that the school offer the accuser supportive measures even if they don’t file an official complaint.

University administrators, conservative legal scholars and advocacy groups, including “men’s rights” groups, have heralded the new rules, believing the Obama-era guidelines were confusing, lacked due process and were biased in favor of accusers.

“We expect that the proposed regulations will be a dramatic improvement,” Samantha Harris, director of policy research at the Foundation for Individual Rights in Education, told NPR, praising the Trump administration for “recognizing that schools must provide meaningful procedural protections to accused students when adjudicating such serious offenses.”

Critics, however, say the new guidelines will undermine the rights of victims of sexual harassment and assault. Rep. Maxine Waters (D-Calif.) said in a roundtable discussion quoted by the Washington Post that the new rules will “will prioritize the interests of the institutions and the accused, while undermining protections for survivors.” The American Civil Liberties Union said in a statement on Twitter that the policy “promotes an unfair process” and will “make schools less safe for survivors of sexual assault and harassment.”

Jess Davidson of the group End Rape on Campus told NPR that the group was organizing protests against the new guidance, saying that the new rules will mark a return to a time when “rape, assault and harassment were swept under the rug.”

“It demonstrates Betsy DeVos and the Trump administration share the same attitude about assault that we saw from Senate Republicans during the Kavanaugh hearing — disparage and diminish survivors and discourage them from reporting,” Davidson said.