US Education Department issues new sexual assault rules favoring accused

16 Nov 2018

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Education Secretary Betsy DeVos issued new rules and guidelines regarding campus sexual assault allegations on Friday (16 November).

According to the United States Education Department, these guidelines seek to ‘produce more reliable outcomes, thereby encouraging more students to turn to their schools for support in the wake of sexual harassment and reducing the risk of improperly punishing students’.

The directive, which can be read in its entirety here, addresses Title IX of the Education Amendments of 1972.

Title IX bars sex discrimination at schools that receive federal funding. Under the Trump administration, there is now debate as to whether or not Title IX applies to gender identity as well.

They already vowed to stop investigating trans students’ bathroom cases.

The biggest proposed changes

The issued guidelines propose numerous changes to the previous implementation of Title IX under the Obama administration. Here are some of the biggest:

A narrower definition of harrasment, which is now: ‘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’.

Further, schools must have ‘actual knowledge’ of an incident to respond to it. The incident must have also occurred within a school’s own programs or activities.

Due process procedures, such as a presumption of innocence, opportunity to present witnesses, and user an attorney.

Part of this element includes a new proposal allowed the accused to cross-examine the accuser, carried out through a representative of the accused.

Rep. Joe Kennedy III (D-MA) took particular issue with this change.

No survivor should be cross-examined by his or her accused rapist. Ever. Full stop. https://t.co/DZgvEuZKi6

— Rep. Joe Kennedy III (@RepJoeKennedy) November 15, 2018

The Education Department will only implement punishment if the incident was ‘clearly unreasonable in light of the known circumstances’.

Religious exemptions

The report also waives the need for religious institutions to submit a written statement to apply for Title IX exemption. Now, religious schools can simply receive the exemption and not have to abide by it.

Criticisms of the guidelines

Numerous organizations have already issued criticisms of the proposed rules.

This rule turns back the clock to a time when our schools swept rape, sexual assault, and harassment under the rug,’ said Human Rights Campaign Legal Director Sarah Warbelow.

‘This is a blatant disregard for the justice of survivors of sexual violence by letting schools off the hook for Title IX obligations and denying survivors, including LGBTQ survivors, their civil right to equal access to education..’

As a report released today reveals, LGBTI youth disproportionately suffer from sexual violence.

The ACLU also tweeted their condemnation of the report.

It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence.

— ACLU (@ACLU) November 16, 2018

The National Women’s Law Center further joined these voices.

BREAKING: Betsy DeVos’ Department of Education just released a set of potentially devastating draft rules. If they go into effect, they would undermine many of Title IX’s essential protections. Access to education for millions—especially survivors—is on the line. pic.twitter.com/VQgdopZ7fi

— National Women's Law Center (@nwlc) November 16, 2018

According to RAINN, sexual violence is more common on school campuses than other crimes.