New Rules Proposing Changes to Campus Sexual Harassment Policies: A Comprehensive Analysis
Introduction
The recent proposals by Education Secretary Betsy DeVos have sparked a heated debate among campus sexual harassment advocates, Title IX experts, and the public at large. Contrary to some critics who argue that these new rules will hinder the protection of victims, the proposed changes aim to provide clarity and fairness within the existing legal framework. This article will explore how these changes are likely to impact the safety and rights of both complainants and accused individuals.
Key Components of the New Rules
Requirement for Investigating Reports of Sexual Harassment
The first significant change proposed is the requirement for schools to investigate reports of sexual harassment, which includes sexual assault, dating violence, domestic violence, or stalking. These definitions align closely with the requirements outlined in the Clery Act, the Violence Against Women Act (VAWA), and the Supreme Court's Davis definition. This ensures that investigations are consistent with the First Amendment and not overly restrictive as seen in previous guidelines. For instance, professors who discussed sex in class or wrote critical essays about Title IX are no longer at risk of being charged.
Education on Reporting and Confidentiality
The second major update involves clarity regarding how to report incidents and recognizing the importance of confidentiality. Schools must inform the community about how to report to the Title IX Coordinator, but they can also allow students to speak confidentially with someone else, ensuring the complainant’s wishes are respected. A formal complaint is not mandatory for an investigation to proceed, giving the complainant more control over the process.
Prompt Response and Supportive Measures
Third, schools are mandated to respond promptly and reasonably to Title IX sexual harassment cases. This includes offering supportive measures to the complainant, regardless of whether a formal complaint has been filed. Importantly, any disciplinary procedures must follow a consistent grievance process before any non-supportive measures are taken. Suspensions can still be considered if the accused poses a clear threat to the community, but they must be mutually agreed upon and followed by adequate notice and appeal rights.
Live Hearings and Cross-Examination
The proposed rules also introduce live hearings where the complainant and accused can be cross-examined by an advocate. This ensures that critical information is exchanged and allows for a thorough examination of the case. The hearing chair can determine the applicability of questions, particularly ensuring they comply with rape shield laws.
Due Process and Proof Standards
Another important aspect is the establishment of due process. Accused individuals are presumed innocent until proven guilty, a principle often overlooked in previous guidelines. The standard of evidence can vary between 'preponderance of the evidence' (51%) and 'clear and convincing' (75%), aligned with the standards applied to faculty. Several teachers' unions have these standards written into their contracts, which can provide clarity and fairness.
Investigation Scope and Addressing Weak Points
Additionally, these rules address the investigation of incidents on school property and areas where the school holds authority, such as recognized fraternity houses. However, the rules acknowledge that they do not extend to private apartments or overseas programs. While this is a potential weakness, schools can still investigate these cases using their code of conduct rules.
Impact and Considerations
The primary goal of these proposed changes is to strike a balance between protecting victims and ensuring due process for accused individuals. Critics argue that the old system, which often ignored the accused's side of the story, was flawed. By incorporating due process and clear evidence standards, the new rules aim to address these concerns.
A key assertion is that these changes will provide clarity to a broken system and ultimately help protect complainants in the long run. While some victim advocates are concerned about the scope, it is clear that this proposal represents a significant step towards a more balanced and fair approach.
Further Reading and Resources
To learn more about the issues with the old system, read this article: The Uncomfortable Truth About Campus Rape Policy.
For a comprehensive overview of the lawsuits filed against schools that allege bias and lack of due process, visit: Title IX For All.
For those interested in diving deeper, these resources provide valuable insight into the ongoing debate and the essential changes proposed.