Potential Federal Campus Sexual Assault Rules Include Due Process, Return To Sanity

Key Speakers At The Conservative Political Action Conference
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From what little we know about the soon-to-be-released draft of new rules regarding how colleges and universities should handle sexual assault accusations, it appears some kind of sanity will return to academia.

A leaked draft, obtained by The New York Times and merely described but barely quoted, appears to show a focus on the rights of accusers and the accused, something lacking from the Obama administration's guidelines. Schools may get some relief from the fear that the Education Department’s ever-changing demands could lose them federal funding.

The leaked draft, which has not been entered into the Federal Register and therefore may change before it is officially presented for comment, builds on Education Secretary Betsy DeVos’ interim guidance implemented last September.

According to the Times’ description of the draft, the proposed rules would “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.” The rules would also “establish a higher legal standard to determine whether schools improperly addressed complaints.”

The “narrow” definition of sexual harassment would fall in line with the Supreme Court’s decision in Davis v. Monroe County Board of Education, albeit a simpler one: “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.”

No definition for sexual assault is described by the Times, but it needs to be narrowed as well. Currently, the definition used by schools, the media, and Obama holdovers in the federal government is so broad that normal relationship behavior can be considered sexual assault if someone wishes to accuse another person. (In the linked case, the accusation came after the gay couple broke up, and the accuser’s crush began dating his ex-boyfriend.) Such a broad definition obviously led to more reports, but the reports did not amount to a reasonable person’s definition of sexual assault. It was essentially like trying to control the prescription drug problem by making Tylenol illegal.

The leaked draft also suggests schools only be responsible for formal complaints made to “an official who has the authority to institute corrective measures,” such as a Title IX officer. This would remove Resident Advisors (RA) and others from the list of mandatory reporters, which could help change the current culture that paints women as victims if they have drunk sex. Sometimes, women don’t bring a formal complaint until after they’ve talked to an RA trained in the broadened definition of sexual assault and harassment, who insists that regretted behavior is actual assault.

Further, schools would only be responsible for investigating instances that actually happened on-campus or within school programs. This would mean it’s no longer the school’s responsibility to play police department for off-campus parties.

The leaked draft would also “allow” schools to adopt a higher standard than the “preponderance of evidence” (50% plus a feather) when adjudicating claims of assault and harassment. It is unlikely many schools will take advantage of this, however.

These new rules potentially include the requirement for cross-examination, but only when a hearing is held. This would also require college kids to take on the role of attorney, which may not actually help them, according to attorney Scott Greenfield.

“Cross isn’t easy. Not for lawyers. Not for college sophomores,” Greenfield wrote. “Would this involve advance questions, submitted to a tribunal for approval to ask only those questions they deem appropriate? Or does this tell colleges to not hold live hearings so no cross, to the extent some kid was capable of it, could be had?”

This is not to say cross-examination shouldn’t be included in the new rules — it absolutely should be. The Obama administration actively discouraged schools from cross-examining accusers, claiming it could “re-traumatize” them. This was part of the culture suggesting all accusations are true, so anything done to find the truth of the situation was an attack on accusers, usually described as “victims” or “survivors” right off the bat.

The new policy may also include the sorely lacking requirement that schools hand over all evidence obtained to both accusers and the accused. Previously, schools often wouldn’t even tell the accused what he or she was accused of, and would withhold exculpatory evidence.

The Obama guidance had no force of law because it was improperly implemented without a notice-and-comment period. It was treated as if it had such force by those in the Education Department’s Office for Civil Rights (OCR) because former head Catherine Lhamon told schools it wasn’t “an empty threat” and bragged about threatening schools with a loss of funding. The DeVos guidance will have the force of law, as the proposed draft will soon be open for comment.

Buried in the Times article is the leaked draft’s commitment to fairness, another thing lacking during the Obama administration.

“The regulations go to great lengths to require impartiality in investigations. They call on schools to conduct objective investigations and provide ‘prompt and equitable’ resolutions. And, for the first time, the administration explicitly says that just as an institution’s treatment of a complainant could constitute sex discrimination, so would the treatment of the accused,” the Times wrote. “The regulations require that schools approach all investigations under the presumption that the accused is innocent until proved guilty.”

When schools act under the fear that they will be accused of ignoring “victims” because they found no evidence to support an accusation — or if they found evidence of lying — they end up discriminating against innocent accused students. That needs to change, but until the culture surrounding this issue comes back to reality, nothing will truly change.

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