After meeting with "men's rights" groups and scrapping an Obama-era guidance for how colleges and universities should handle sexual harassment and assault allegations last year, Education Secretary Betsy DeVos is reportedly set to release new rules that will "bolster the due process rights of the accused."
"This is horrific," declared Planned Parenthood. "[DeVos] is determined to make it harder than ever for survivors of sexual assault to seek justice on campus."
.@BetsyDeVosED is determined to make it harder than ever for survivors of sexual assault to seek justice on campus.
This is horrific.
— Planned Parenthood Action (@PPact) November 14, 2018
"The new rules would reduce liability for universities, tighten the definition of sexual harassment, and allow schools to use a higher standard in evaluating claims of sexual harassment and assault," reported the Washington Post. "The most significant change would guarantee the accused the right to cross-examine their accusers, though it would have to be conducted by advisers or attorneys for the people involved, rather than by the person accused of misconduct."
While the Obama guidance defined sexual harassment as "unwelcome conduct of a sexual nature," unnamed sources told the newspaper that DeVos' proposal describes it as "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school's education program or activity."
The new rules supposedly strongly resemble a draft leaked earlier this year. As the Post detailed:
The most consequential provisions are unchanged since September.
The biggest may be the standard of proof required in assessing claims. Under the DeVos proposal, schools will be allowed to choose between "preponderance of the evidence" and the higher bar of "clear and convincing" evidence. The Obama guidelines had directed schools to use the "preponderance of the evidence" standard.
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The regulation also will require schools to use the same standard in these cases as they use for other complaints, including those against employees and faculty. Many union contracts and other agreements with faculty mandate the use of a higher "clear and convincing" standard, several people said. So as a practical matter, most schools may be forced to apply the same higher bar for student complaints.
With the proposal "set for release before Thanksgiving, possibly this week," according to the Post, some expressed concern that the timing could be a strategic ploy to stay off the public's radar and avoid criticism. Sabrina Joy Stevens wrote for the National Women's Law Center on Wednesday:
DeVos has been launching attacks on student survivors at the behest of sexist extremist groups since last fall, when she rescinded guidance that schools requested during the Obama administration to help them understand their obligations under Title IX. We've been expecting them to propose new Title IX regulations for nearly a year, and leaked drafts—which include chilling provisions that would hurt survivors and make schools more dangerous overall—have been reported on in the press since August. So what's the hold up?
One possible explanation is a rumor that they're planning to include the Title IX regulations in another news dump for either this Friday or next week, right when reporters and key policy experts are checking out for the weekend and preparing to be gone for Thanksgiving. If true, that timing would also ensure that a significant chunk of the notice and comment period would coincide with final exams and winter break, making it harder for students who would be most directly impacted by these regulations to organize against them.
In addition to Stevens' call to action—"We can't let them get away with this," she concluded—the Post article provoked immediate outrage on social media, with critics tweeting: "Re-victimizing the victims seems to be the plan here. Horrible." "Shame on you, Betsy DeVos." "[DeVos" And simply, " is an enemy to women. WTF?"
Democratic Sen. Ron Wyden of Oregon tweeted that if President Donald Trump—who has been accused of harassing and assaulting multiple women—and DeVos "actually cared about the well-being of survivors, this is the last thing they would do. We should be empowering survivors to speak up, not stifling them."
If @BetsyDeVosED and @realDonaldTrump actually cared about the well-being of survivors, this is the last thing they would do. We should be empowering survivors to speak up, not stifling them. https://t.co/CuVE2MhWKF
— Ron Wyden (@RonWyden) November 14, 2018
DeVos' proposal "encourages victim blaming and blatantly ignores the painful stories of #MeToo," said Democratic Rep. Eric Swalwell of California. "It takes us backward."