Education Secretary Betsy DeVos proposes controversial changes to campus sexual misconduct rules, narrowing definition of sexual harassment

Marina Pitofsky | USA TODAY

Show Caption Hide Caption Assault victim rejects Title IX guideline change A Washington woman who is a sexual assault victim and activist says she rejects Education Secretary Betsy DeVos' argument that Obama-era rules on investigating campus assaults need to be changed. (Sept. 7)

Education Secretary Betsy DeVos released a controversial proposal Friday to overhaul how schools across the country address sexual misconduct complaints, narrowing the definition of what sexual harassment is on campus and reinforcing "due process" rights for students accused.

The rule creates three categories for harassment, including "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;" "quid pro quo harassment," like a school employee "conditioning an educational benefit" on a person's sexual conduct; and sexual assault.

Under Obama-era guidelines, sexual harassment was defined more loosely as "unwelcome conduct of a sexual nature."

The proposal legally requires schools to respond to complaints when they are filed with Title IX coordinators at schools or an official authorized to take action. Schools are only legally required to respond if the alleged incident occurred on campus or on areas overseen by the school, leaving out, for example, study abroad programs.

One of the most striking changes would allow for the accused to cross-examine accusers during sexual misconduct hearings, although it would be carried out through a representative to avoid confrontation between students.

The proposed guidelines also dictate "the importance of supportive measures" for the accused and the accuser. This can include academic course adjustments, counseling, no-contact orders, dorm room reassignment, leaves of absence and class schedule changes for the accused or the accuser, according to the Department of Education.

Accused students would be presumed innocent during the disciplinary process and given the right to review all evidence a school collects.

DeVos said the overhaul would make Title IX grievance complaints more transparent and reliable for all parties. "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 Friday.

The Department of Education's plans have already drawn criticism from lawmakers and organizations that advocate on behalf of sexual assault survivors.

Rep. Joe Kennedy, (D-Mass.) slammed the cross-examination provision of the guidelines in a tweet Thursday. "No survivor should be cross-examined by his or her accused rapist," Kennedy said.

No survivor should be cross-examined by his or her accused rapist. Ever. Full stop. https://t.co/DZgvEuZKi6 — Rep. Joe Kennedy III (@RepJoeKennedy) November 15, 2018

The National Women's Law Center also called the rules "potentially devastating," because the organization says it would "undermine many of Title IX's essential protections."

BREAKING: Betsy DeVos’ Department of Education just released a set of potentially devastating draft rules. If they go into effect, they would undermine many of Title IX’s essential protections. Access to education for millions—especially survivors—is on the line. pic.twitter.com/VQgdopZ7fi — NWLC (@nwlc) November 16, 2018

Fatima Goss Graves, CEO of the NWLC, said in a statement that the draft rules create a more dangerous environment "for all students and more schools will shield harassers and rapists."

The proposed guidelines did draw support from some lawmakers. Sen. Lamar Alexander (R-Tenn.) applauded it for bringing "much needed clarity" to the federal rules governing sexual misconduct on campuses.

"The Department’s approach seems to balance fairness and support for survivors," Alexander said in a statement.

The proposed rules will be subject to public comment for 60 days prior to being finalized.