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Betsy DeVos passes new rules that give sexual predators green light on campus

By Yair Oded

May 11, 2020

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Last week, the US Department of Education issued its final rules on the handling of sexual assault allegations that narrow the definition of sexual assault, increase protections for the accused and reduce schools’ liability in dealing with such cases.

Sexual assault and misconduct have long plagued US schools and universities. After decades of educational institutions mishandling and actively suppressing accusations of sexual assault, the Obama administration issued guidelines in 2011 and 2014 that expanded protections for survivors and increased the accountability of schools in handling complaints.

They did so, essentially, by widening the scope of Title IX—a federal law that defends people from being discriminated against based on their sex in federally-funded education programs and activities. Under the Obama-era guidelines, schools were obligated to take action on any sexual assault case they knew about or “reasonably” should have been aware of, and were instructed to adopt low standards of evidence in the adjudication process.

The new rules, which are due to go into effect on 14 August, upend the previous guidelines. Notably, they reduce the scope of Title IX and narrow the definition of sexual assault to “unwelcome conduct that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” Schools are now instructed to dismiss complaints that do not fall under this new definition, regardless of the validity of the allegations.

The new rules also state that schools will be required to respond only to cases that took place during school-related activities (either on or off-campus), excluding study abroad programs, and give schools discretion in choosing the standard of proof they wish to uphold. Unlike the Obama-era guidelines, the new rules relieve coaches and other school employees (such as faculty and residential life staff) of the responsibility to report cases of sexual misconduct and assault—stipulating that only complaints that are made to designated Title IX coordinators will have to be addressed.

Education Secretary Betsy DeVos, for whom the completion of the new rules constitutes a considerable victory, defended her Department’s guidelines, stating that, “Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault (…) This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process.”

But many human rights advocates decry the new rules, arguing that they severely impinge on rights of survivors and foster a culture of institutional suppression and neglect around sexual assault. “If student survivors of sexual assault cannot prove that harassment escalated to the point that their ability to access education was ‘effectively denied’, then schools are not required to take action,” Divya Srinivasan, a human rights lawyer at Equality Now, told Screen shot.

“We know that sexual harassment and assault impacts victims in a variety of ways, for some it means they are not able to focus on work or school, but others cope by going about ‘business as usual’. For those that cannot prove that their education has been derailed, then they are left unprotected.”

“The new rules raise the standard of liability under which schools can be held accountable for ignoring complaints or failing to take action,” Srinivasan added. “Schools are only liable now if they were ‘deliberately indifferent’ in a way that is ‘clearly unreasonable’, making it extremely difficult for survivors to hold schools accountable for failing to take action on their complaints. Schools will now just need to tick certain procedural boxes and comply ‘on paper’ to avoid liability and they will be able to mistreat or bully survivors as long as their actions do not meet the high standard of being ‘clearly unreasonable’. The Department of Education has essentially allowed schools to go back to shoving sexual harassment complaints under the carpet, with little threat of being held accountable, gutting the very purpose of Title IX.”

One of the most controversial aspects of the new rules is the stipulation that calls for live hearings with cross-examinations to be conducted between accusers and the accused, in which the latter could question evidence and challenge the validity of the allegations. While students will not be addressing each other directly in such hearings, and will be able to request they be conducted virtually in separate rooms, many still worry that this procedure will compel survivors to withdraw their complaints or refrain from coming forward altogether.

“Many survivors could be coerced or pressured into agreeing to attend [mediation processes] by schools who are more interested in protecting their reputations than the well-being of the student. Such mediation processes can be used as a tool to silence survivors,” said Srinivasan.

The new guidelines are due to be challenged in court by human rights advocates, and could also be rescinded in Congress should Democrats regain control of the Senate and maintain their majority in the House in November’s elections.

But as legal battles are waged, it is important to view the new rules within the larger context of the Trump’s administration’s persistent attack on women. As women are statistically more vulnerable to sexual assault, particularly while in school, the new rules must be recognised for what they are: another attempt by the current government to chip away at the rights and protections of women.