DeVos’s Rules on Sexual Misconduct, Long Awaited on Campuses, Reflect Her Interim Policy

Colleges got a preview on Wednesday of what might be coming in the U.S. Department of Education’s long-awaited regulations on campus sexual misconduct.

The New York Times obtained a version of the proposed rules, which would be the first regulations ever issued under Title IX, the federal gender-equity law. The Times reported that the rules would strengthen the rights of students who are accused of sexual assault or harassment, and would lessen liability for colleges. The document may not be a final draft of the rules.

Here are some of its highlights, according to the Times:

• Colleges would be held accountable only for responding to formal misconduct complaints filed through official institutional channels, or allegations of which officials have “actual knowledge.” A formal complaint would be one “made to an official who has the authority to institute corrective measures,” not someone like a resident adviser.
• Sexual harassment would be defined as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity.” That’s narrower than the Obama administration’s definition.
• Colleges would be responsible for handling allegations of sexual misconduct that occurred on their campuses and in institutional programs, but not in settings like off-campus student apartments.
• When deciding whether a person had committed sexual misconduct, colleges would be able to choose which legal standard to use — “preponderance of the evidence,” meaning that it’s more likely than not that the misconduct occurred, or “clear and convincing evidence,” a higher standard.
• The department’s Office for Civil Rights would use a higher legal standard to determine whether a college violated Title IX.

“The department recognizes that despite well-intentioned efforts by school districts, colleges and universities, advocacy organizations, and the department itself, sexual harassment and assault continue to present serious problems across the nation’s campuses,” federal officials wrote in the draft rules, according to the Times, which did not say how or from where it had obtained the document.

“The lack of clear regulatory standards has contributed to processes that have not been fair to all parties involved, that have lacked appropriate procedural protections, and that have undermined confidence in the reliability of the outcomes of investigations of sexual-harassment allegations,” the draft says.

‘Administrative Fiat’

College officials have been in limbo for the past year, since the secretary of education, Betsy DeVos, rescinded the Obama administration’s Title IX guidance, which for six years had framed colleges’ approach to handling sexual assault and harassment. The Obama-era civil-rights office had also stepped up enforcement of Title IX and opened hundreds of investigations into colleges for potentially violating the law.

A year ago, DeVos said she was concerned that students accused of sexual misconduct weren’t receiving due process and, in some cases, were facing serious punishments from colleges for crimes they didn’t commit. Many college officials have complained that the Obama-era guidance — the most significant of which was a 2011 “Dear Colleague” letter — was burdensome and bureaucratic.

At the same time she withdrew the Obama documents, DeVos put in place interim guidance that was designed to be a placeholder until the department issued proposed regulations and completed a notice-and-comment period. DeVos had criticized the previous administration’s department for, as she put it, handing down mandates by “administrative fiat.”

Advocacy groups for victims of sexual misconduct decried the changes and said they would harm sexual-assault survivors, and also expressed concern that a less-aggressive federal commitment to Title IX would let colleges off the hook. Organizations that support the rights of accused students applauded DeVos for taking such a firm stand for due process.

Many observers expected DeVos’s interim guidance to signal what was to come in the proposed regulations, and the document the Times obtained appears to reflect that. The rules would continue to allow colleges to use an informal resolution process, instead of an investigation, to resolve some cases of sexual assault.

One new policy, according to the Times, would allow sexual-misconduct victims and accused students to request evidence from each other and to cross-examine each other during campus hearings. The Obama administration had discouraged cross-examination because officials believed it could retraumatize victims.

‘I Don’t Think It’s Earth-Shaking’

A full picture of what’s in the proposed regulations won’t materialize until a final document is published, Title IX experts cautioned on Wednesday.

In the short term, they added, it’s likely that nothing will change on campuses. A few institutions might be looking for an excuse to scale back the amount of money and resources they devote to complying with Title IX, they said. But even when DeVos rescinded the Obama-era guidance last year, most colleges retained their Title IX policies and programs.

When the department’s final sexual-misconduct rules take effect, they will have the force of law. But it’s not clear how long it will take to get to that point since it has already taken the department nearly a year to craft this version of the regulations, noted Brett A. Sokolow, president of the Ncherm Group, which advises colleges on risk management.

During the Obama era of Title IX enforcement, Sokolow said, many believed that the pendulum had swung too far in favor of sexual-assault victims. “These rules are trying to reassert a new balance,” he said.

But colleges had already been shifting their practices toward being “trauma-informed, victim-centered, and preserving and respecting of due process,” he said. As for the document the Times obtained, he said, “I don’t think it’s earth-shaking.”

Peter F. Lake, who leads the Center for Excellence in Higher Education Law and Policy at Stetson University, was struck by the document’s narrow definition of sexual harassment, which appears to suggest that colleges would have no obligation to intervene if a case of harassment doesn’t seem “severe, pervasive, and objectively offensive.” If the final rules use that same language, he said, that potentially “removes the preventative effect of Title IX.”

In recent years, colleges “were told to have avenues to consider harassment that doesn’t rise to the level of a hostile environment,” Lake said. “If they don’t have enough information that could trigger a formal complaint,” he continued, “are we going to turn people away who are suggesting that a doctor or some other team official has been repeatedly harassing people?”

Experts also called attention to the draft’s language indicating that colleges would be held accountable only for responding to formal sexual-misconduct complaints. The proposed change could upend the mandatory-reporting policies that many campuses have adopted, which direct nearly every employee to report allegations of sexual misconduct they hear about. That report then triggers a response from the Title IX office.

Some have criticized those policies for taking away the ability for professors and resident advisers to have confidential conversations with students.

Most people on campuses nowadays expect Title IX officials to respond to allegations whether or not an official complaint has been filed, though, Lake said. “I don’t think most Title IX offices will put up signs saying, ‘We’re closed for business unless you make a formal report,’” he said.

For Jody Shipper, a consultant who helps small colleges comply with Title IX, the big question is philosophical: Are the proposed regulations designed to be permissive, or are they prescriptive? If the latter, she said, the rules could conflict with a wave of state laws on campus sexual assault that have recently been enacted.

Once the regulations take effect, Lake predicted that a lawsuit would be filed almost immediately. The question, he said, is whether the Education Department has the authority to exercise this level of regulatory power.

It’s one thing for federal officials to say that colleges must respect due-process rights in sexual-misconduct cases, he said. It’s another to say that colleges should define sexual harassment in a certain way.

In short, Lake asked, “Does Title IX support regulations that create specific mandates for college courts?”

Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.