Conservative lawmakers on Wednesday said the Education Department’s new rules on how schools must address allegations of sexual misconduct protect due process while Democrats and victim advocacy groups slammed the changes as weakening accountability for schools and protections for survivors.
The 2,000-page rule released Wednesday narrows the definition of sexual harassment and requires schools to hold hearings during which both the accusers and accused can be cross-examined.
In 2011, the Obama administration issued a “Dear Colleague” letter and in 2014 sent a supplementary document that defined sexual harassment broadly and held schools liable for incidents they knew about or “reasonably should” have been aware of. The move resulted in more Title IX lawsuits than before, which some have argued put an unnecessary strain on schools and those accused.
The new rules, which take effect in August, say schools are only obligated to investigate complaints filed through a formal process or brought to the correct authorities and give universities the freedom to choose which standard of proof to use.
Critics claim that the new rules make it easier for schools to get away with mishandling sexual assault allegations against students and faculty and make it more burdensome for victims to come forward. Education Secretary Betsy DeVos and conservative lawmakers have touted the new rules as a way to strengthen due process.
“I ask Betsy DeVos to look a survivor in the eyes and explain how these changes will keep her safe or ensure that she achieves justice,” Rep. Jackie Speier (D-Calif.) wrote in a statement. “I ask this Administration – where is the humanity in subjecting a survivor to live hearings and cross examinations, or in making it easier for a perpetrator to get away with gross misconduct knowing they can go on to violate again?”
House Judiciary Chairman Rep. Jerrold Nadler (D-N.Y.) and House Education and Labor Committee Chairman Bobby Scott (D-Va.) issued a joint statement Wednesday afternoon saying the results of the new rules “will be to erode protections for students, weaken accountability for schools, and make it more difficult for survivors seeking redress.”
“The rule finalized today also requires schools to address only the most severe and pervasive forms of sexual misconduct, and only if that misconduct is reported to a designated Title IX officer in postsecondary cases. Accordingly, institutions may now be permitted to overlook many instances of harassment that they were previously obligated to address,” the lawmakers added.
Sen. Patty Murray (D-Wash.), ranking member of the Senate Health, Education, Labor and Pensions Committee, tweeted Wednesday, said the new rules are “about silencing survivors.”
“While I’m deeply disappointed, I’m not surprised @BetsyDeVosED ignored these voices & moved forward with a rule that strips away protections for survivors,” she added.
DeVos’s office had been working on the new rules as early as January and the finalized rules go into effect on Aug. 14. Conservatives applauded the move, echoing DeVos’s statement that it restores due process.
Murray’s Republican counterpart, chairman Sen. Lamar Alexander (Tenn.), said in a statement the new rule “respects and supports victims and preserves due process rights for both the victim and the accused.”
The Foundation for Individual Rights in Education (FIRE), a nonpartisan civil liberties group that had criticized the guidance under the Obama administration and applauded the new regulations.
“For nearly a decade, FIRE led the charge to introduce fairness to campus proceedings, first nearly alone, then with a growing number of allies,” FIRE Executive Director Robert Shibley said in a statement. “Today, we won an important victory. But our work is not over. We will continue to fight to ensure that students are afforded the rights now guaranteed to them when they return to campus this fall.”
Victim advocacy groups have said that the new rule shields schools from liability for sexual misconduct that takes place on their grounds.
“If this rule goes into effect, it will make schools more dangerous and could push survivors out of school entirely,” Know Your IX tweeted, saying the rules are “rolling back the rights of student survivors.”
SAFER, an organization that focuses on preventing sexual assault in school, said the new rules “undo the progress achieved during the Obama administration and will literally protect abusers.”
Fatima Goss Graves, president of the National Women’s Law Center, told The New York Times the organization plans to contest the new rules in court.
“Betsy DeVos and the Trump administration are dead set on making schools more dangerous for everyone — even during a global pandemic,” Goss Graves told the Times. “And if this rule goes into effect, survivors will be denied their civil rights and will get the message loud and clear that there is no point in reporting assault.”