{"id":2212,"date":"2018-11-30T13:10:56","date_gmt":"2018-11-30T19:10:56","guid":{"rendered":"http:\/\/blogs.luc.edu\/compliance\/?p=2212"},"modified":"2018-11-30T13:10:56","modified_gmt":"2018-11-30T19:10:56","slug":"protections-for-accused-students-or-problems-for-victims","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/compliance\/?p=2212","title":{"rendered":"Protections for Accused Students or Problems for Victims?"},"content":{"rendered":"

Blake Koloseike<\/em><\/p>\n

Associate Editor<\/em><\/p>\n

Loyola University Chicago School of Law, JD 2020<\/em><\/p>\n

The Trump administration has proposed new rules for schools dealing with sexual assault and harassment allegations<\/a> 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<\/a> colleges that receive federal funding use to adjudicate complaints of assault and harassment. The new proposed rules come during the #MeToo movement<\/a>, 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.<\/p>\n

Proposed Changes Have Advocates Worried<\/strong><\/p>\n

Under the Obama administration<\/a>, sexual harassment was defined as the \u201cunwelcome conduct of a sexual nature.\u201d 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 \u201cso severe, pervasive, and objectively offensive that it effectively denies a person equal access<\/a> to the recipient\u2019s education program or activity.\u201d The Education Department bases this definition on a 1999 Supreme Court case<\/a> that held that student-on-student sexual harassment could constitute discrimination<\/a>.<\/p>\n

Furthermore, the new rules hold schools responsible<\/a> only for investigating allegations that are part of campus programs and activities and were properly reported. The school must have \u201cactual knowledge<\/a>\u201d 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<\/a> about the sexual harassment or assault incident. Additionally, the incident must occur on school property<\/a> or school-sponsored events, meaning off-campus fraternity and sorority houses are excluded.<\/p>\n

Moreover, schools can adopt a higher burden of proof<\/a>, raising the bar for determining an accused student\u2019s guilt. Schools and universities can choose<\/a> to either adopt the \u201cpreponderance of the evidence\u201d standard or the \u201cclear and convincing evidence\u201d standard. However, the school must use the same standard<\/a> for both student allegations and employee allegations.<\/p>\n

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<\/a> the accuser. This practice was discouraged during the Obama administration in hopes of preventing any further trauma<\/a> to the assault victims. In addition, the new rules eliminates the single-investigator model<\/a> in which the same person investigates a claim and determines its veracity.<\/p>\n

The Debate Between Support and Opposition<\/strong><\/p>\n

Supporters<\/a> of the new rules argue that accused students must be shielded from reckless or unfair accusations. They argue that schools have gone too far<\/a> and provided little to no due process to accused students. It has also been said that the new proposal restores balance<\/a> to a system that had been skewed too far in favor of the accusers. Advocates for the accused believe that it is essential<\/a> for these students to be able to have an intermediary cross-examine their accusers to counter any bias within the college administration.<\/p>\n

Individuals in opposition<\/a> 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<\/a> for harassment and assault and would make college campuses less safe for women. According to an Education Department investigation<\/a>, 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<\/a> of sexual harassment will put survivors\u2019 education at risk.<\/p>\n

Education Secretary Betsy DeVos said<\/a>, \u201cWe can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are mutually exclusive ideas.\u201d 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<\/a> and subjected to an unfair process. DeVos said that she has worked to create a balance<\/a> between the victims and the accused.<\/p>\n

The proposed rules, set forth by the Education Department, will enter a sixty-day<\/a> 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

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.<\/p>\n","protected":false},"author":38,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[79,275,594,687,1690,1825,1826],"class_list":["post-2212","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-metoo","tag-betsy-devos","tag-department-of-education","tag-education","tag-regulation","tag-sexual-assault","tag-sexual-harassment"],"_links":{"self":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts\/2212","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/users\/38"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2212"}],"version-history":[{"count":0,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts\/2212\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2212"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2212"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2212"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}