Education Secretary Betsy DeVos on Friday proposed a major overhaul to the way colleges and universities handle complaints of sexual misconduct, adding protections for students accused of assault and harassment, and narrowing the types of cases schools would be required to investigate.
Under the plan, schools would be required to investigate complaints only if they occurred on campus or other areas overseen by the school, and only if they were reported to certain campus officials with the authority to take action.
The Education Department says the proposal ensures fairness for students on both sides of accusations, while offering schools greater flexibility to help victims who don't want to file formal complaints that could trigger an investigation.
"Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment," DeVos said in a statement. "That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined."
DeVos previously said the existing rules were too prescriptive, pressuring schools to take heavy action against students accused of misconduct without giving them a fair chance to defend themselves.
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The new proposal adds protections for accused students, giving them a presumption of innocence throughout the disciplinary process and the right to review all evidence a school collects. They would also be able to cross-examine their accusers, although it would be done indirectly through a representative to avoid personal confrontation.
If finalized, it will tell schools how to apply the 1972 law known as Title IX, which forbids discrimination based on sex in schools that receive federal funding.
In September 2017, DeVos rescinded a set of 2011 rules that were created under the Obama administration and guided schools on how to handle complaints.
Advocacy groups for victims say the Obama rules forced schools to stop brushing the issue under the rug, while advocates for accused students say it tipped the scales in favor of accusers. Some college leaders complained that the rules were too complex and could be overly burdensome.
Among other changes, DeVos's proposal narrows the definition of what constitutes sexual harassment. It would be defined as unwelcome sexual conduct that's "so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school's education program or activity."
It also allows schools to use a higher standard of proof to determine if a student should be found responsible for misconduct. While the Obama guidance told schools to use a "preponderance of the evidence" standard, meaning the allegation is "more likely than not" true, the new proposal would allow a "clear and convincing" standard, meaning the claim is highly probable.
The department will collect public input on the rules before they can be finalized.
CORRECTION (Nov. 16, 2018, 11:32 a.m.): An earlier version of this article misstated the procedure that could be used in cross-examinations of those accusing other students of misconduct. The cross-examinations would be done indirectly through a representative; accused students would not be able to directly question their accusers.
