Blake Koloseike
Associate Editor
Loyola University Chicago School of Law, JD 2020
The Trump administration has proposed new rules for schools dealing with sexual assault and harassment allegations that narrow the definition of sexual harassment and offering greater protections for the accused. Under the new rules, the Education Department is altering the procedures colleges that receive federal funding use to adjudicate complaints of assault and harassment. The new proposed rules come during the #MeToo movement, which will likely prove to be very controversial to both those who support the changes and those who oppose the changes. The federal guidelines stem from Title IX, which bars sex discrimination at schools that receive federal funding.
Proposed Changes Have Advocates Worried
Under the Obama administration, sexual harassment was defined as the “unwelcome conduct of a sexual nature.” The new rules provide a new definition of sexual harassment, which is arguably the biggest change. The new definition of sexual harassment is the unwanted sexual conduct that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The Education Department bases this definition on a 1999 Supreme Court case that held that student-on-student sexual harassment could constitute discrimination.
Furthermore, the new rules hold schools responsible only for investigating allegations that are part of campus programs and activities and were properly reported. The school must have “actual knowledge” of the incident in order to be held responsible. Prior to the newly set forth rules, schools were held responsible for failing to act if they knew or reasonably should have known about the sexual harassment or assault incident. Additionally, the incident must occur on school property or school-sponsored events, meaning off-campus fraternity and sorority houses are excluded.
Moreover, schools can adopt a higher burden of proof, raising the bar for determining an accused student’s guilt. Schools and universities can choose to either adopt the “preponderance of the evidence” standard or the “clear and convincing evidence” standard. However, the school must use the same standard for both student allegations and employee allegations.
Finally, the new rules require new procedures designed to protect students who are accused of misconduct. An important requirement of the new rules is that a lawyer or advocate for the accused student be allowed to cross-examine the accuser. This practice was discouraged during the Obama administration in hopes of preventing any further trauma to the assault victims. In addition, the new rules eliminates the single-investigator model in which the same person investigates a claim and determines its veracity.
The Debate Between Support and Opposition
Supporters of the new rules argue that accused students must be shielded from reckless or unfair accusations. They argue that schools have gone too far and provided little to no due process to accused students. It has also been said that the new proposal restores balance to a system that had been skewed too far in favor of the accusers. Advocates for the accused believe that it is essential for these students to be able to have an intermediary cross-examine their accusers to counter any bias within the college administration.
Individuals in opposition of the new rules argue that victims must be heard and protected. Additionally, these individuals have said the new rules would allow assailants and schools to escape responsibility for harassment and assault and would make college campuses less safe for women. According to an Education Department investigation, these rules will lead to a 39% annual reduction in sexual harassment investigations at colleges and universities. Advocates for victims believe that changing the definition of sexual harassment will put survivors’ education at risk.
Education Secretary Betsy DeVos said, “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are mutually exclusive ideas.” The newly proposed rules reflects a belief of the Trump administration that young men, who are the majority of accused students, are often presumed guilty and subjected to an unfair process. DeVos said that she has worked to create a balance between the victims and the accused.
The proposed rules, set forth by the Education Department, will enter a sixty-day public notice and comment period before they become final. This will allow for both advocates for the accused and advocates for the victims to argue their opinions. Overall, the newly proposed rules have created a divide between supporters of victims of sexual harassment and supporters of those accused of sexual harassment. The proposal will certainly cause continuing debate.