On Friday, the Department of Education released its new proposed Title IX rules, which would dictate how schools respond to allegations of sexual assault and sexual harassment. In response, activists and advocates are speaking out to say the rules could actually do more harm than good — by implicating survivors and making schools more dangerous.
In introducing the rules, Secretary of Education Betsy DeVos said that they were designed to both punish sexual violence and ensure due process for those accused of it. The rules, which are undergoing a 60-day comment process, would require schools to respond to properly reported incidents that allegedly occurred on campus or during school-sponsored activities.
To resolve grievances, schools would be required to hold a live hearing and to allow a representative of the accused to cross-examine the complainant. The rules also create a stricter definition of sexual harassment than previously used, stating it must be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”
DeVos has previously stated that the new rules were needed in order to clarify policies that were put in place by the Obama administration via letters, which she described as a “failed system.” “Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” DeVos said in a statement. “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function.”
But this weekend, many survivors, experts and lawmakers voiced their disagreement. “Instead of standing up for sexual assault survivors, Secretary DeVos wants to put traumatized students on trial,” tweeted Rep. Barbara Lee, D-Calif. “Students deserve so much better than Betsy DeVos. #HandsOffIX”
“The proposed rule changes to #TitleIX put forward today for public comment by the Department of Education once again demonstrate that Secretary Betsy DeVos and her team lack basic empathy for survivors and do not care about campus safety,” Tracey Vitchers, executive director of It’s on Us, said in a statement.
The idea that schools only have to respond to incidents on campus is of particular concern to some, particularly considering how many assaults take place in off-campus housing.
“My assault occurred at an off-campus apartment down the street from my school, outside of a university program and activity,” Sage Carson, manager of Know Your IX, wrote in an op ed on Broadly. “That means that, under DeVos’ rules, my school wouldn’t have had to investigate my case, and they wouldn’t have needed to provide the support they did: to ensure I didn’t have to sit in class with my rapist, even though that caused me panic attacks; to provide me with the free counseling that helped me to finally finish an exam without crying; to move my scholarship, which was one of the only reasons I was able to graduate college and get a job.”
Others are worried about the live hearing and cross-examination requirement. The idea of having to face a lawyer’s questioning in a formal hearing discourages victims from coming forward in many cases.
Many schools have instead conducted their own investigations to resolve accusations of sexual violence. Some have argued that moving to a formal hearing is the only way to make the process fair to the accused.
“There is no better way to test the truthfulness of an accusation than by questioning the accuser during a live hearing,” Justin Dillon, a Washington-based attorney who has represented accused students, told the New York Times. “If colleges are going to adjudicate what are essentially crimes, then accused students deserve to have the tools to defend themselves effectively.”
Other lawyers think that’s oversimplifying what would happen.
“When people glibly talk about cross-examination being the greatest tool for discovering the truth in the history of the Western world, they obviously haven’t seen some attorneys do cross-examination,” Scott Schneider, a lawyer specializing in higher education, told The Atlantic.
“This would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing,” Terry Hartle, a senior vice president at the American Council on Education, told the Washington Post. “We are not courts. I’m not sure we should try to act like courts.”
Hearings are both expensive and potentially traumatic, so Schneider and others say this rule would result in schools attempting to resolve situations in informal processes.
“Virtually everybody would try to avoid live hearings,” Catherine Lhamon, chair of the U.S. Commission on Civil Rights and a former assistant secretary at the Department of Education, told the Atlantic. “It would be difficult to administer effectively and difficult to live through as either the accuser or the accused student.”
Organizations such as Hands Off IX are encouraging people to use the official public comment period to voice their concerns and suggest alternatives.
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