Proposed Changes to U.S. Department of Education’s Regulations on Campus Sexual Misconduct Bolster the Rights of the Accused

Posted on October 12, 2018

On August 29, 2018, the U.S. Department of Education released new proposed policies around campus sexual misconduct. Under the new proposed regulations, the rights of students accused of sexual assault or harassment would be strengthened and would also lessen the liability for universities.

The major change would be subsequent litigation, meaning accused students can look to the federal government if they feel their school’s policies are unfair. The changes would also allow for a cross-examination directly between a victim and their accuser, putting victims in a position less likely to report abuse.

Secretary of Education, Betsy Devos, has stated “it’s clear that the stories of the accused are not being told, and a system without due-process protections, serves no one.”

For six years Title IX, the federal gender-equity law, had outlined how to approach the handling of sexual assault and harassment allegations. While the proposed regulations have not yet been issued, it is important to know what it could mean if the rules are put into action.

How could the new regulations hold institutions accountable?

  • Colleges would only be held liable if an allegation of sexual misconduct occurred on their campus or within one of their institutional programs;
  • Colleges would only be held accountable for formal complaints filed through a school official who has the authority to take corrective measures;
  • When making a decision as to whether or not someone committed sexual misconduct, colleges would be able to decide for themselves whether it is more likely than not the misconduct occurred or “preponderance of evidence,” or if there is “clear and convincing evidence”;
  • Colleges would institute a higher legal standard to determine whether schools improperly addressed complaints.
  • The classification of sexual harassment would become more specific and 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.”

How could these changes affect victims of sexual misconduct?

It is possible that the U.S. Department of Education will fully rescind the guidance provided by the Obama administration, however, it is unlikely that colleges will completely abandon any framework they created to combat sexual misconduct. In fact, many Title IX coordinators are attempting to forge their own paths forward. Many schools have proved willing to defy the court system in order to retain victim-friendly policies. In fact, this change may discourage students from reporting sexual assaults, ultimately making campuses less safe for their students.

Also, these regulations should not be greeted with open arms to the extent they decrease the scope of liability afforded a student under state laws.

How will these changes affect those accused of sexual misconduct?

Obama-era guidelines had once demanded colleges to use “preponderance of the evidence” as the standard of proof.  This is the same burden in a civil trial.  However, the changes would now demand a higher standard known as “clear and convincing evidence,” meaning the proof must be stronger than a regular civil trial, but not as high as the criminal standard of “beyond a reasonable doubt.”  This new change would also allow for a mediation, allowing for the accused to face their accuser in order to come to an agreement.

If you or someone you know has been a victim of sexual misconduct within an educational institution, it is important to the attorneys at McNicholas & McNicholas, LLP that victims are heard. If you have questions or need assistance with a possible sexual misconduct case, please contact our office at 310-474-1582 or visit our website for a free consultation.

Sources:

https://www.chronicle.com/article/DeVos-s-Rules-on-Sexual/244394

https://www.freep.com/story/news/local/michigan/2018/08/30/devos-sexual-assault-investigation-changes/1142128002/

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