After a year of deliberation, the Education Department is poised to release new guidelines governing investigations of sexual harassment and assault on college campuses. Secretary Betsy DeVos rescinded the chaos-inducing Obama-era guidelines last September and set out to reform the rules to establish some semblance of due process protections for the accused. Her department appears to be taking a big step in the right direction.
The New York Times obtained and reported on the proposal Wednesday. Robby Soave confirmed the plans independently at Reason, reporting based on the account of an official that DeVos’ new framework “will permit colleges to adopt higher evidentiary standards in hearings, mandate cross-examination of relevant parties in a dispute, and stress that all students are considered innocent until proven guilty.”
One of the most important elements of the DeVos approach involves narrowing the definition of sexual harassment adopted by Obama officials in 2011 from “unwelcome conduct of a sexual nature” to “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.” The latter is a Supreme Court definition, according to the Times.
Under DeVos, schools will also be able to choose whether to apply the “preponderance of evidence” or “clear and convincing” standards of determining guilt, so long as they’re consistent in applying their standard of choice in all civil rights disputes.
Two paragraphs at the very end of the Times report especially paint the revisions in a promising light. “The regulations go to great lengths to require impartiality in investigations,” the article notes. “They call on schools to conduct objective investigations and provide ‘prompt and equitable’ resolutions. And, for the first time, the administration explicitly says that just as an institution’s treatment of a complainant could constitute sex discrimination, so would the treatment of the accused.”
“The regulations require that schools approach all investigations under the presumption that the accused is innocent until proved guilty,” adds the Times.
In terms of protecting due process and helping schools establish fair systems of review that protect victims and punish offenders without the turmoil, confusion, and uncertainty that rocked higher education under Obama, the draft proposal sounds like a much-needed improvement.
The previous administration’s approach to Title IX investigations induced chaos on campuses around the country, and ultimately drew opposition from a broad coalition of people across the political spectrum. Schools need clarity from the Education Department, and guidelines that enable them to implement fair processes, and only now are they finally getting something that looks like that.
Without the full public draft, it’s difficult to conclusively endorse the department’s revisions. But from what we know so far, they appear to be an improvement.
