New Education Department Rules to Change Procedures for Campus Sexual-Assault Cases

By

Michelle Hackman

Oct. 31, 2018 6:37 p.m. ET

WASHINGTON—New federal rules governing campus sexual-assault cases will require that accused students be allowed to cross-examine their accusers, according to people familiar with a draft of the rules.

The requirement marks a shift from an initial draft of the new rules, leaked in August, which Trump officials are writing to replace a set of Obama-era guidelines they feel didn’t provide sufficient protections for students accused of sexual assault.

The rules, which Education Secretary Betsy DeVos will likely publish in November, will narrow the definition of sexual assault that schools are required to adjudicate and restrict eligible cases to those that occur on campus. The rules will be subject to a comment period before taking effect.

The rule changes fall under Title IX, a 1972 law barring gender discrimination in schools and colleges that receive federal funding.

In the earlier draft, the administration initially proposed providing schools with the option of incorporating cross-examination into their procedures.

The current version would make a cross-examination provision mandatory, though questions could be funneled through a neutral party and students could be seated in separate rooms. The rules would also bar accused students from asking their accusers inappropriate questions, such as details of the accuser’s sexual history.

The modification echoes the goals of some university administrators, men’s rights activists and due-process advocates who believe students accused of behavior that could result in their expulsion should be given more opportunities to defend themselves.

“Courts have recognized that cross-examination is an essential part of the process of figuring out the truth in cases where credibility is a factor,” said Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, which advocates for more due process for those accused of campus sexual assault.

Anurima Bhargava, a former Obama Justice Department official who oversaw civil rights enforcement in educational settings, said the Obama administration discouraged the use of cross-examination because it could make sexual-assault victims reluctant to come forward.

“If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience,” she said.

The modification also reflects a belief espoused by President Trump and some other Republicans that young men—who make up the vast majority of accused students—are often presumed guilty and subjected to an unfair process to determine the truth.

Following Democrats’ demands that Justice Brett Kavanaugh step aside this fall, Mr. Trump suggested that the #MeToo movement is unfairly targeting men who aren’t guilty of any sexual impropriety. He said it is a “very scary time for young men in America” when “you can be guilty of something you may not be guilty of.”

An Education Department spokeswoman declined to comment on the contents of the rules until it is published.

The new rules will make at least one change from the earlier draft that was pushed by victims’ advocates. Rather than allowing only accused students to appeal rulings, the rules will maintain an Obama standard allowing both parties to appeal.

Critics have said that practice too often forced schools to retry accused students who had been already found innocent.

Some officials had advocated publishing the sexual-assault rules ahead of next week’s midterms, arguing that it would be viewed positively by the Republican base, particularly after Justice Kavanaugh’s nomination. Those officials were ultimately overruled, according to people familiar with the matter.

The new Title IX rules, which are currently under final review at the White House, won’t contain a definition of gender, as some officials in other agencies had urged.

The Department of Health and Human Services is still looking at defining gender as an individual’s sex at birth, though if it isn’t defined that way in Title IX, it will be harder to apply such a definition across the federal government.

Trump administration officials are now looking at issuing a legal opinion through the Justice Department stating the administration’s belief that gender under Title IX is determined by a person’s genitals at birth, according to people familiar with their thinking.

But issuing such an opinion, without writing the definition into formal regulations, would put the government on weaker footing.

Once the rules are published, the public will be given a window to comment before they go into effect.

University administrators, in particular, said the old process put undue restraints on their ability to handle assault cases, and that the Obama administration’s stance led schools to fear that any misstep could prompt a costly federal investigation.

Mrs. DeVos revoked those guidelines in 2017, and said her agency would issue formal regulations in their place. The rules she intends to publish will carry the force of law without action by Congress.

The rules are being prepared as sexual assault—and colleges’ responses to it—remains a flashpoint on campuses. Both the accused and alleged victims have faulted institutions for shoddy investigations or biased tribunals.

In a speech last year, Mrs. DeVos likened the campus processes used to adjudicate sexual assault to “kangaroo courts” that followed arbitrary rules and offered inadequate protections to those involved.

“Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved,” she said.