Education Secretary Betsy DeVos on Friday unveiled sweeping changes to campus sexual misconduct rules, bolstering rights of the accused and giving colleges more flexibility in how they handle Title IX cases.
The proposed new federal rules would require schools to allow cross-examination during hearings in misconduct cases, though parties would not question each other directly, and provide both sides equal access to evidence. They would tighten the definition of sexual harassment, requiring conduct to be so severe, pervasive and "objectively offensive" that it effectively denies a person equal access to the school's education program or activity.
The regulations would reduce liability for colleges and give them the option to choose to adopt a higher burden of proof to reach a finding of sexual misconduct.
They also encourage schools to increase support for victims of sexual assault.
DeVos said the changes are aimed at restoring fairness and clarity to campus sexual misconduct proceedings. She said she condemned sexual violence.
"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," she said. "We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function."
Last year, DeVos rescinded the Obama administration's controversial Title IX guidelines that imposed stricter requirements on colleges to investigate sexual assault cases. DeVos called those rules coercive and unjust, and said they were peremptorily issued without any public airing.
Her rules will be published in the Federal Register and subject to public comment for 60 days before being finalized.
Sexual assault survivors condemned the proposed rule changes as a rollback of protections at a time when the #MeToo movement had finally emboldened them to share their stories and demand justice.
Others said the changes were long overdue, as a growing number of accused students sue colleges for denying them due process.
"Finally they're issuing rules to reinforce the rights that already are well established and should be uniformly applied," said Mark Hathaway, a Los Angeles attorney who has represented more than 150 students accused of sexual misconduct. "It's been a long time coming."
He said California courts already have begun ordering colleges to restore the due process rights to accused students that are spelled out in the new rules. In recent cases against Claremont McKenna College and UC Santa Barbara, he said, the state Court of Appeal found that respondents had the right to question their accusers.
Title IX prohibits sex discrimination in education by schools that receive federal funding.
