Betsy DeVos Proposes New Rules for How Colleges Handle Sexual Harassment Claims

BU will examine the changes closely to ensure a safe learning environment

On Friday, US Education Secretary Betsy DeVos proposed significant changes to federal rules for the handling of sexual harassment and sexual assault complaints by universities. Photo by Tom Williams/AP Images.

Betsy DeVos, US Secretary of Education, proposed controversial federal rule changes Friday that would require significant alterations in the way colleges and universities handle complaints of sexual harassment and sexual assault.

The change that garnered the most attention was a requirement that a hearing be held where representatives of accusers and of their alleged victims were present and could cross-examine the other party.

Another significant change is that colleges would be required to investigate only those allegations that occur on campus or in areas the school oversees, and only if an allegation was properly reported to specific officials. The current rules stipulate that colleges must investigate all student complaints, whether they occur on campus or off and no matter how the school learned about them.

The proposals from DeVos would also tighten the definition of sexual harassment.

BU officials say they need to study the proposals and evaluate their effects before responding. The University’s priority is always to “provide students with a learning environment that is safe from sexual harassment and misconduct,” says Jennifer Grodsky, BU’s vice president for federal relations, and the proposals need to be evaluated in that light.

A 60-day public comment period now follows before final rules are enacted by the Department of Education, likely in early 2019, Grodsky says. The University could comment directly or through a trade organization. Find the full text of the proposals here.

“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” DeVos said in a statement. “That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined. 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.”

Keys changes in the proposed rules include:

• Colleges and universities would be required to hold a live hearing, including cross-examination. That questioning could be conducted only through the parties’ advisors (usually counsel), however, and personal confrontation between the complainant and respondent would not be permitted. Currently BU uses staff from the Judicial Affairs office to provide findings of fact, the so-called “investigator-only” model, which would no longer be permitted.
• New definitions of sexual harassment include: “Unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” Currently the rules use Obama-era standards of unwelcome conduct of a sexual nature.
• Requiring schools to choose one standard for deciding all cases, either a simple “preponderance of the evidence,” as used at BU currently, or the higher standard of “clear and convincing evidence.” Schools would be required to decide all cases by the same standard.

The changes appear intended to counteract Obama-era rules that are described by Trump administration officials as too vague, as well as to increase due process protections for the accused.

“It is our goal with this proposed rule to ensure that Title IX grievance proceedings become more transparent, consistent, and reliable in their processes and outcomes,” DeVos said. “Far too many students have been forced to go to court to ensure their rights are protected because the Department has not set out legally binding rules that hold schools accountable for responding to allegations of sexual harassment in a supportive, fair manner.”

The public is invited to comment on the proposed update to Title IX rules. Students, faculty, and staff wishing to voice their opinion to the US  Department of Education can do so here.

Author, Joel Brown can be reached at jbnbpt@bu.edu.