Education Secretary Betsy DeVos. (Alex Brandon/AP)Education Secretary Betsy DeVos plans to release as early as Wednesday her much-anticipated final rules governing how schools must investigate sexual assault allegations, bolstering the rights of the accused, people familiar with the matter said.In its broad outlines, the sweeping regulation is unchanged from the proposed version released in 2018, though there were minor adjustments made throughout, according to one person familiar with the matter who was unauthorized to comment publicly and spoke on condition of anonymity.The rules will give universities and colleges a clear but controversial road map for handling emotionally charged conflicts that often pit one student against another. They replace less formal guidance, issued by the Obama administration, that was friendlier to those making allegations.

Under the new rules, college students accused of sexual assault and harassment must be given the right to a live hearing and the ability to cross-examine their accusers, much as the proposed rule directed. The rules also define sexual harassment narrowly, limiting it to conduct that is both severe and pervasive, not just one or the other.

In one change, however, the regulation explicitly adds dating violence and stalking as allegations that must be investigated.

In publishing the proposal in November 2018, DeVos said the new rules would restore balance in a system that, in her view, had been skewed in favor of the accusers. She said her approach would provide clarity and fairness for victims and those accused of wrongdoing.

The proposal came under intense fire from women’s rights groups and Democrats, who said it would allow assailants and schools to escape responsibility and make college campuses less safe for women.

DeVos had hoped to publish the rule late last year, but she was delayed in part by the need to respond to a crush of public comments — 124,196 in all, including a torrent of criticism from universities, advocacy groups, survivors of sexual assault and campus leaders. This spring’s coronavirus pandemic also contributed to a delayed announcement.

The administration worked to follow administrative procedures to the letter, bracing for a lawsuit. Opponents were already vowing to challenge it in court. The rules could also be undone or modified through legislation, should Democrats gain control of Congress next year.

One priority for the administration was making sure the regulation is in place in time to avoid the Congressional Review Act, which allows Congress to scrutinize and roll back recently issued rules.

The regulations stem from a 1972 law known as Title IX that bars sex discrimination at schools receiving federal funding. Most of the attention is on higher education, but the rules also apply to elementary and secondary schools.

Overall, the new regulation describes what constitutes sexual harassment or assault as part of Title IX enforcement, what triggers a school’s legal obligation to respond to allegations, and how a school must respond. Unlike less formal Obama-era guidance that DeVos rescinded, the new regulation was subject to public comment and, once finalized, will carry the force of law.

The final regulation made some changes from the proposal in its details.

It clarifies that universities are responsible for investigating incidents that take place in university-recognized fraternity or sorority houses located off-campus, or in off-campus apartments if the event is part of a university program, two people familiar with the matter said.

In another change, one said, the regulation will consider K-12 schools to be “on notice” of allegations, and therefore required to investigate, if any school employee has been informed of the allegations. That means a student who tells a bus driver or a teacher has effectively notified the district.

The rules come after years of rising pressure on universities to better respond to sexual assault allegations and other misconduct.

Supporters argue cross-examination is the most effective way of ferreting out the truth of what happened in a situation when students offer different recollections of the same event.

But advocates for sexual assault victims say the provision could subject survivors to more trauma and discourage them from coming forward. And universities complained that the requirement would turn their campuses into courtrooms.

Due process for me, and the benefit of every doubt — plus a media that provides cover and apology.If presumptive Democratic Party presidential nominee Joe Biden were forced to live by the standards he wants to set for college students accused of sexual misconduct, he would already have been presumed guilty, have been denied a genuine opportunity to refute the charges leveled against him by Tara Reade, and had his life ruined.

In 2011, the Obama DOJ’s “Dear Colleague” letter directed institutions of higher learning to adjudicate sexual-assault and misconduct cases under Title IX not by a “clear and convincing evidence” standard, but by a “preponderance of evidence.” The letter also “strongly” discouraged cross-examination of alleged victims — one of the fundamental methods of determining truth — because it “may be traumatic or intimidating” to the alleged victim. After Secretary of Education Betsy DeVos proposed new rules to reinstate some semblance of impartiality in the process, Biden, and a number of other Democrats, engaged in a smear campaign against her.

The former vice president never actually spelled out his specific criticisms of DeVos’s proposal. In a sycophantic 2017 Teen Vogue interview, in which Biden offered a number of rambling platitudes regarding sexual assault, he argued that DeVos is incentivizing assaults by proposing that colleges live by the traditional criteria of fairness. “Let me tell you,” he said, “it bothers me most if Secretary DeVos is going to really dumb down Title IX enforcement. The real message, the real frightening message you’re going to send out is, our culture says it’s OK.”

Biden is lucky that, in this case, media outlets chose to act in a professional manner, reporting and offering context to Reade’s allegations. Brett Kavanaugh was not so fortunate. Back then, journalists relayed every salacious, uncorroborated, and risible allegation thrown at them, leaving the Supreme Court nominee to prove his own innocence. The former vice president expects college students to live under the Kavanaugh standard while he enjoys his own.

Now, obviously Biden is to be judged by voters, not by a court or institutional tribunal. Reade hasn’t filed criminal charges. But guess what? Most students aren’t under criminal investigation either, and yet their collegiate careers and reputations can be forever ruined by the prejudiced process that was forced on colleges by Biden. The Foundation for Individual Rights in Education estimates that half of unfair-treatment lawsuits completed since 2013 have ended in the favor of the accused.

Every allegation of sexual assault should be taken seriously. But, as I’ve argued elsewhere, due process isn’t the opposite of justice, it is the prerequisite to it. Biden, whose campaign argues that he is falsely accused, should finally comprehend the importance of traditional tenets of justice. And no, not just for himself.

This is collateral damage that Democrats — who have spent the last few years championing the #MeToo movement — should be loath to incur. Democrats who subject Ms. Reade’s allegations to a level of scrutiny not widely applied to accusers in similar circumstances — such as Christine Blasey-Ford, who famously came forward during the confirmation of Justice Brett Kavanaugh for the Supreme Court to allege that he had sexually accosted her in high school — also open up past and future cases to reproachful disregard. Conservatives, like my colleague Bret Stephens, can see the plain gulf between how Democrats have approached sexual assault in politically advantageous cases versus Ms. Reade’s, and the evident hypocrisy threatens to discredit the entire enterprise.

Whether Biden sexually assaulted Tara Reade or not, a fact that will never be determined because Reade chose not to avail herself of the mechanism America uses to make such determinations, the Democrats, the pseudo-feminists and most importantly, Joseph Biden know a far harder truth: They are hypocrites. They are and were wrong. There must be due process for the accused.

KC Johnson and Stuart Taylor did the math.

If this long overdue change is sincere, the Democrats can show it by supporting the pending new Title IX regulations. The new rules are designed to require campuses to treat students accused of sexual misconduct with fairness and impartiality instead of effectively presuming guilt, as too many campuses currently do. Now is the ideal time for the Trump administration to release those regulations, spearheaded by Education Secretary Betsy DeVos.

It’s been a terrible struggle over the past decade for male college students to eke out what little opportunity they could to defend themselves against accusations wrapped in a litany of inane excuses that made everything, no matter what, proof of guilt. When the 2011 Dear Colleague Letter and its progeny were rescinded, activists cried that giving the accused a tenth of a chance to defend themselves was enabling rapists.

Can the same people who gave us whiplash in their pivot from Believe All Women to Take Women Seriously But Vigorously Investigate live with their flagrant hypocrisy by persisting in their disingenuous complaints about the new Title IX regs? As KC and Stuart note, “if this long overdue change is sincere,” they cannot. It’s a huge “if.”

But the head cheerleader, and the presidential nominee who has taken the hard position against giving male college students due process, is none other than the man who asks it for himself now. Is joe Biden “sincere”? Does Joe Biden have the integrity to admit he’s been dangerously wrong up to now, but he’s seen the light?

FACE, families Advocating for Campus Equality, sent Biden a letter putting the question to him.

We are hopeful your recent experience has made you realize that “sexual misconduct” is no longer just about sex. The “rules of engagement” for sexual misconduct are a moving target. Historically-acceptable hugs and genuine forms of non-sexual expressions of affection are no longer acceptable. Worse still, the consequences can be a swift end to education, career, and sometimes can even be life-ending. This affects not only those wrongfully disciplined, but also their mothers, fathers, siblings, grandparents, and spouses.

Children and young adults are not puppets to manipulate as props for the purpose of advancing political agendas. Yet that is today’s reality. Just like you have been accused of touching women in ways that cause them to “feel uncomfortable,” so too have many men, women, and LGBTQ students and professors been disciplined for the often subjective feelings of their accusers.

As a well-respected public figure, you are fortunate to have the opportunity to survive accusations of impropriety for your well-intended gestures, as well as an audience willing to forgive. Unfortunately, young students and faculty members only experience draconian repercussions for the same types of behaviors.

Joe Biden enjoys the support of his followers, his party and most of the media, who will do their part to seek out faults in Tara Reade’s accusations and history, ignoring the litany of excuses that have protected other accusers, from Christine Blasey-Ford to every woman on campus to every accuser on social media. And still Biden is constrained to defend against the accusations. What of the college sophomore, the 19-year-old male student who has neither the powerful friends and supporters nor the ability to air his denial on Morning Joe? If Biden demands his chance to deny guilt, would he demand the 19-year-old male student be presumed guilty?

Senator Biden, please, take off your political hat for just a moment, and open your eyes to what’s happening to innocent students and faculty who could be your sons, daughters, brothers or sisters – because, as you must now know, “doing the right thing” no longer protects you in this ‘accusation = guilt’ world.

Whether Biden sexually assaulted Tara Reade will forever be a mystery, but in a principled world, he would be presumed innocent because the burden is, must be, on the accuser to prove his guilt. The same thing is true of male college students accused of sexual misconduct, and it’s time for Biden to man up to the egregiously wrong position he’s taken for too long and concede that every accused must be afforded due process. Just like him.

Now is the moment, the “perfect storm,” to release the new Title IX regs that will, hopefully, give male college students a fighting chance to defend themselves from accusations. It may still be that neither Biden, nor his supporters, are sincere in their epiphany that due process matters, and their hypocrisy will then be as flagrant as possible. It will be out there for all to see.

But there will never be a better moment than now. Secretary DeVos, please release the new regs now.

Away at school

Andrew Miltenberg spent his morning on the phone with a Princeton University father. His son had been accused of sexual assault—wrongly, he believed—and was the respondent in a Title IX matter on campus.

The hearing was coming up, and the father was concerned: What if the Title IX panel, made up of school faculty, didn’t believe his son? What if his side of the story wasn’t really heard? If he’s not heard, and if he gets sanctioned, what happens to med school?

It was a typical call for the Bergen County-based lawyer, whose Manhattan office handles around 75 of these cases at a time. But this isn’t a typical time, students across the state and country are off campus due to the COVID-19 health crisis, and these Title IX hearings are happening the same way as every other meeting: Zoom or conference call.

“For someone who is already accused, to not be able to be in person and connect with the panel, and for the panel to not be able to seize upon certain credibility markers—nonverbal cues, things we pick up speaking to someone that help us determine if someone is or isn’t telling the truth—isn’t fair,” Miltenberg said. “Credibility is so critical, because the right to openly confront your accuser is so critical, and to hear what an accuser says about you in person, and the ability to face the person making decisions is so critical.”

Miltenberg has handled hearings at colleges across New Jersey and around the country. By the end of this week, he’ll have attended 20 Zoom meetings between investigative interviews and the hearings themselves, from the University of Maine to Providence College to Virginia Polytechnic. For many of the hearings going on now, the complainant and all the complainant’s witnesses were interviewed in person before school closed, and the respondent and respondent’s witnesses are being interviewed by phone or video chat.

“Have you been on a seven or eight person Zoom call? Like any conference call, someone’s speaking, their voice gets cut off, someone else interrupts,” Miltenberg said. “It’s much harder than an in-person conversation. Right now, there’s an unlevel playing field. If it was your kid, you’d want the benefit from every possible tool and inferences we have as human beings.”

New Title IX regulations are expected to be announced any day now. The rules reportedly will raise the standard of evidence or allow schools to make that change on their own, and they may allow some type of real-time cross examination, Miltenberg said.

“The new regulations will increase the opportunity for schools to engage in an informal resolution, meaning the parties agreed between themselves as to how they’re going to deal with this going forward, as opposed to the school dictating it. Right now, if the complaint involves penetration of any sort, informal resolution isn’t available, meaning there has to be a hearing. There’s also some thought that if someone makes a complaint and wants to withdraw it, they should be allowed to withdraw it,”

Miltenberg said. “Right now, once you make a complaint, you lose the ability to stop the process, so you see situations where a couple [gets back together], where the complainant wants to stop the process, or they recant, or they say ‘wait I didn’t mean for all this to happen to them.’ But they take on a life of their own once the school gets involved.”

The new regulations will reportedly make sanctions more restorative than punitive, opting away from expulsion and toward criteria like community service and mandated therapy.

“You can turn these events into teachable moments. That’s not to say – I have two daughters, one’s in college, and there are rapes that happen. There are sexual assaults that happen. This is not to say that those should not be dealt with aggressively. Part of that is making sure they’re dealt with fairly and that the process and policy is equitable and transparent,” Miltenberg said.

“There’s two sides of the issue. With the separation of everyone it sort of moots the issue with everyone initially, but the fact that there are more virtual campuses, it doesn’t mean they can forever hold this in abeyance,” said Greenbaum, Rowe, Smith & Davis LLP Partner Jemi Goulian Lucey, who represents universities sued by victims of sexual violence in Title IX cases. “From the complainant’s standpoint, I think there’s some issue of finality, to have this behind them. I don’t think anybody wants this to go out for six months or a year and have to drum it all back up again. There’s a lot of interests considered here, making sure there’s a stable university environment and that on campus, whether in person or virtually, they feel safe. And there’s the rights of the complainant and respondent.”

Originally, Miltenberg said, some schools were open to holding off on Title IX hearings for a handful of weeks until COVID-19 subsided later this spring. But now, as COVID-19 campus closures could extend well beyond the current semester and Title IX offices remain open, schools like Syracuse University in New York are deciding to go forward with them.

“I think to myself, it’s a self-perpetuating job for Title IX offices. No one needs a Title IX office if you’re not having hearings. Most schools when this started six or seven years ago had one or two deans that did conduct violations. Now most schools, even smaller ones, have several dedicated in-house lawyers and in some cases a dozen in-house investigators,” Miltenberg said. “Columbia University has like 30 lawyers and 40 investigators that deal with these issues now. This has become a cottage industry. Of course, I’ve benefited from it, but I’m asking not to be [benefitting from it] right now.”

Miltenberg represented Paul Nungesser, the respondent in the widely publicized “Mattress Girl” case. Emma Sulkowicz accused Nungesser of rape in 2013, and after Nungesser was found not responsible by a Columbia University inquiry, Sulkowicz produced a work of performance art called Mattress Performance (Carry That Weight) as her senior thesis in protest of what she described as the university’s mishandling of her sexual assault complaint. The protest involved Sulkowicz carrying a mattress around on campus to represent the burden rape victims carry in day-to-day life.

As Lucey sees it, from the perspective of college and universities, to the extent that the parties agree to allow for the matter to be held in abeyance until there is a return to campus, it would appear that holding off on the hearings is the preferred course of action.

“Unless the parties don’t agree or unless there is some time-sensitive issue that must be attended to, and that the determination of the Title IX hearing [affects] that step,” Lucey said. “If the respondent is a graduating senior so there’s a need to have the matter resolved so that the determination can be made as to whether or not they can graduate, that could be a matter where the situation would have to go forward toward a hearing.”

Lucey noted that litigators such as herself are having to deal with those issues now as well, where all parties involved must agree to treat the online meeting as a live, in-person hearing.

“You make best efforts in a tough situation,” she said.

Gabrielle Saulsbery

Albany, N.Y. native Gabrielle Saulsbery is a staff writer for NJBIZ and the newest thing in New Jersey. You can contact her at g