Bad timing for new rules
Education Secretary Betsy DeVos’s long-planned overhaul of regulations governing how schools and colleges handle allegations of sexual harassment and assault has been released in final form. As expected, they came under almost immediate court challenge from advocates for sexual abuse victims who claim they will lead to a return to the bad old days when campus rape and sexual misconduct were swept under the rug.
It is fair to question why the Trump administration chose to release the final rules during a global pandemic when schools across the country are scrambling to deal with chaos and uncertainty. It is also understandable to wish that the department had taken more to heart some suggested changes, including how sexual harassment is defined, how victims are cross-examined and the scope of a school’s responsibility. But the old guidance was in need of improvement, and the new Title IX rules do not provide license for schools to ignore sexual assault and harassment. The revisions, as we observed when the proposal was put out for public comment in 2018, include some changes that would bring needed balance to disciplinary proceedings.
Four advocacy groups for people who have been sexually assaulted filed a federal lawsuit last week seeking to block the provisions from going into effect Aug. 14. The regulations, released May 6, replace the now-rescinded guidance of the Obama administration on how to enforce the 48-year-old federal law banning sex-based discrimination in federally funded education programs. The Education Department was right to tell schools, in a 2011 “Dear Colleague” letter, that they needed to deal with long-neglected problems of sexual abuse or risk the loss of federal funding. But that led to a different set of problems. Law professors at leading universities said overcorrection in countering the culture of denial resulted in an assumption of guilt that denied the accused any semblance of due process, including access to evidence from investigative reports and the right to a fair hearing.
The basic issue surrounding the new rules is whether bolstering the rights of those accused — starting with a presumption of innocence and requiring a separation between investigation and adjudication of a complaint — will have a chilling effect on the willingness of students to come forward with allegations of sexual misconduct. Some changes — such as allowing schools to apply a higher evidentiary standard for sexual abuse cases than is used for disciplinary proceedings — seem ill-advised. It is concerning that schools that are now trying to deal with the dilemmas caused by the novel coronavirus will also, barring court action, have to put in place new (and likely costlier) procedures to deal with sexual abuse and harassment cases. Equally concerning, though, is that overheated rhetoric about the bad old days could become a self-fulfilling prophecy.
* Guest editorial from The Washington Post.