Education Secretary Betsy DeVos released final regulations for schools dealing with sexual misconduct, giving them the force of law for the first time and bolstering due-process rights.  The rules preserve Education Secretary Betsy DeVos’s broad goals in overhauling Title IX.

By Erica L. Green

May 6, 2020

WASHINGTON — Education Secretary Betsy DeVos on Wednesday issued final rules for how public and private schools and colleges must address allegations of sexual misconduct, locking in protections for accused students and faculty but tempering earlier proposals that critics said would harm victims of assault and harassment.

The rules preserve Ms. DeVos’s broad goals in overhauling Title IX, the 48-year-old federal law that prohibits sex discrimination in programs that receive federal funding, by infusing legal standards in disciplinary proceedings that have been left largely to schools to navigate.

The new regulations narrow the definition of sexual harassment and require colleges to hold live hearings during which alleged victims and accused perpetrators can be cross-examined to challenge their credibility. The rules also limit the complaints that schools are obligated to investigate to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action.

Schools will also be responsible for investigating only episodes said to have occurred within their programs and activities. And they will have the flexibility to choose which evidentiary standard to use to find students responsible for misconduct — “preponderance of evidence” or “clear and convincing evidence.”

To find a school legally culpable for mishandling allegations, they would have to be proven “deliberately indifferent,” in carrying out mandates to provide support to victims and investigate complaints fairly.

“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” Ms. DeVos said in a statement. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”

The final rules, which take effect in August, codify for the first time sexual assault grievance proceedings that until now were covered by Education Department guidance and recommendations.

The Obama administration issued a “Dear Colleague” letter in 2011 and a supplementary document in 2014, which defined sexual harassment broadly and held schools liable for incidents they knew about or “reasonably should” have known about. They asked schools to adopt a “preponderance of evidence” standard in adjudicating cases and discouraged cross-examination and mediation between victims and accused students.

Victims rights groups said that approach shepherded in a new era of accountability at colleges, putting schools on notice that Title IX did not only address equal access to sports teams. The Obama administration found a pattern of cover-ups and rampant mishandling of Title IX proceedings in both higher education and elementary and secondary schools, and initiated high-profile investigations at schools that carried the threat of losing federal funding.

Fatima Goss Graves, president of the National Women’s Law Center, vowed to fight the new rules in court, saying victims “refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.”

“Betsy DeVos and the Trump administration are dead set on making schools more dangerous for everyone — even during a global pandemic,” Ms. Goss Graves said. “And if this rule goes into effect, survivors will be denied their civil rights and will get the message loud and clear that there is no point in reporting assault.”

When Ms. DeVos rescinded the Obama-era guidance in 2017, she said she acted, in part, to give new rules the force of law. But she also sided with conservatives and other critics who said the Obama guidelines favored accusers and gave little recourse to students accused of wrongdoing. Dozens of students have won court cases against their colleges for violating their rights under the Obama-era rules.

Ms. DeVos’s initial proposals, released in November 2018, elicited more than 120,000 public comments and prompted hundreds of meetings between Education Department officials and advocacy groups.

The final rules changed to address concerns raised by victims rights groups. The department amended provisions that would have allowed schools to ignore allegations of misconduct that occurred off-campus, and officials changed proceedings that critics argued would have re-traumatized victims.

For instance, the department did extend responsibility beyond campus, saying that schools would be obliged to investigate allegations of misconduct that occur in “a building owned or controlled by a student organization that is officially recognized by a postsecondary institution,” such as a fraternity or sorority house.

Jurisdiction also extends to “locations, events, or circumstances” over which the school exercised “substantial control” over students and the activities in which the harassment occurred. However, the rules do exclude actions that happen to students studying abroad.

It also softens initial proposals for cross-examination, which lawyers for accused students believed was crucial. It prohibits students from questioning each other in personal confrontations, leaving that to advisers and lawyers. It also allows colleges to hold hearings virtually, and to grant any request for the two parties to be in separate rooms while the hearing takes place.

In the case of cross-examination, a hearing officer must first decide if the questions are relevant, and questions about a person’s sexual history are not considered relevant unless they could establish consent or prove that someone other than the accused student committed the misconduct.

The final regulations also make exceptions for primary, secondary and other specialized schools, amid concerns that the draft regulations would have subjected small children to the same treatment as young adults.

Those schools are not required to hold a hearing or cross-examinations, though parties must be able to submit written questions. And students in primary and secondary schools can report their claims to any staff member, unlike colleges, where reports must be made to a high-ranking official.

The department maintained a Supreme Court definition of harassment: “Unwelcome conduct that is so severe, pervasive and objectively offensive” that it effectively denies a person access to the school’s education program or activity. But the final rule added that conduct could be harassment if “a reasonable person” would say it was.

The department also clarified that sexual assault, dating violence, domestic violence and stalking are also sexual harassment, and added definitions for the infractions that align with the Clery and Violence Against Women Acts. Those allegations would not have to meet a severe and pervasive standard.

The rules still mandate that schools dismiss complaints that do not meet the sexual harassment definition, even if the allegations are proven true.

The rules bolster the role and visibility of the Title IX coordinator, the main point person for facilitating the complaint process, and allow schools to appoint several staff members to the position. Those staff members are now required to provide “supportive measures” to accusers even if they choose not to go through with a formal complaint.

Cases involving students can be resolved through mediation, but those involving both staff and students cannot.

The rules require that accused students be given written assurance that they are presumed innocent. Schools would not be able to impose any disciplinary actions on students accused of misconduct until the end of the case, though they retain the ability to remove students from campus if they are found to pose a risk.

The department added an extensive section to combat retaliation against people who bring forward complaints of sexual misconduct. A school cannot punish a student or other complainant for making a claim just because a case resulted in an unfavorable outcome. And schools are warned against disciplining students for actions revealed during Title IX proceeding, such as underage drinking or sexual contact on campus.

The rules are the most concrete and wide-reaching policy measure of Ms. DeVos’s tenure. The Title IX overhaul was a priority for the White House, and President Trump has personally commended Ms. DeVos for the undertaking.

But the rules are almost certain to be challenged. Ms. DeVos’s critics have successfully halted or hindered several of her policies in court by challenging her adherence to federal rules for issuing regulations. Under the Congressional Review Act, the rules could be overturned by a simple majority of the Senate, but that would almost certainly require Democrats to retake control of the presidency and the Senate in the November elections.