With Few Tweaks, DeVos’ Title IX Rules Can Work
The public comment period has ended for Education Secretary Betsy DeVos’ proposal to reform how colleges and K-12 schools handle sexual assault and harassment under Title IX. When DeVos unveiled her plan last November, the proposed rules elicited polarized reactions, with some condemning them for “sweeping rape under the rug” and others praising them for reinstating “due process for the accused.” Both sides may be right. I am part of a team at the American Civil Liberties Union that prepared comments on the proposal. But this issue is not abstract for me: I was sexually assaulted in college. I still remember the police asking if I had been regularly asked out on dates. I’ve dedicated my career to gender justice. I’ve chosen to do so at the ACLU, an organization committed to equal rights for women, but to fairness for the accused. Our principal criticism is that the rules would roll back long-standing civil rights protections by substantially reducing schools’ obligation to respond to claims of sexual assault and harassment. Under DeVos’ reforms, a school could not investigate a threat of rape (severe, but not pervasive) or repeated harassment that is not extreme (pervasive, but not severe). The proposal would also forbid schools from investigating most complaints of student-on-student harassment or rape off campus, even if it had continuing effects on campus. Under the proposed rules, schools can require that sexual harassment and assault be proven by clear and convincing evidence. This is a higher standard than is used in cases of racial harassment and in civil proceedings. It’s an inappropriate standard where both students have their education at stake. By imposing a double standard, the department would perpetuate sex discrimination in the name of fighting sex discrimination. At the same time, the regulations would provide important safeguards for assessing claims of sexual harassment and assault. The ACLU has long advocated for robust protections for students facing disciplinary actions. The proposed regulations further that goal by guaranteeing a live hearing and cross-examination, by ensuring both parties have access to all evidence, and by allowing schools to defer disciplinary proceedings if criminal investigations are imminent or underway. We support these protections. But we also suggest some modifications. The department should require schools to offer lawyers to both sides, and to have a lawyer officiate the process. This would ensure effective and non-abusive cross-examination and avoid the inequity of only one party having a lawyer. We also favor strengthening the protections related to concurrent criminal proceedings. The regulations would permit a school to delay a Title IX hearing if the accused seeks a postponement because of an imminent or ongoing criminal proceeding for the same incident. Postponements need to be accompanied by interim protections for the complainant. These protections should apply in all university hearings where serious penalties are at stake, not just sexual harassment or assault cases. Charges of sexual harassment and assault should be treated with the same gravity as any other case with significant consequences for education. Claims of discrimination need to be heard, not ignored. And they need to be heard in a process that’s fair to both sides.