[ad_1]
State Secretary for Education, Betsy DeVos, announced Friday the highly anticipated review of the rules governing sexual assault on campus, reducing the responsibility of colleges and universities to investigate complaints for sexual misconduct and reinforcing the accused's due process rights, including the right to cross-examine their accusers.
The rules would be the first rules governing how schools should meet their legal obligations under Title IX, the 1972 law prohibiting sex discrimination in federally funded educational programs. The settlement will now be subject to a 60-day public comment period before it is finalized.
The regulations reflect a preliminary proposal first reported by the New York Times in August, which established a narrower definition of sexual harassment, tightened reporting requirements, freed colleges from responsibility for investigating sexual harassment. off-campus episodes and outlined the steps that schools should take to provide support. for the accusers. They also give schools the opportunity to choose a higher standard of proof, establish a process for appeal and offer the opportunity for cross-examination.
"Every victim of sexual violence must be taken seriously and any student accused of sexual misconduct must know that guilt is not predetermined," Ms. DeVos said in a statement announcing the regulation. "We can and must condemn sexual violence and punish those who commit it, while ensuring a fair grievance process. These are not mutually exclusive ideas. "
Victim advocates and Obama administration officials denounced what they saw as an excessive reversal of actions taken by the previous administration to combat sexual assault on campus.
"We have drawn public attention to this hidden violence and we have seen schools change their practices accordingly," said former Vice President Joseph R. Biden Jr. in a statement. "These protections made students safer and provided parents with peace of mind. Today's proposed reduction would take us back to the days when schools swept rape and assaults under the rug and left survivors ashamed. "
The most significant changes described in the final proposal include procedural warrants that underscore Ms. DeVos' belief that the system devised by the Obama administration lacks fairness, consistency and procedural fairness.
The new rules codify the procedures that would essentially transform college boardrooms into courtrooms when deciding on disciplinary sexual assault proceedings.
Under the new rules, schools would be required to hold live hearings and no longer rely on a so-called single-researcher model that has become commonplace in colleges. Accusers and students accused of sexual assault must be able to cross-examine through a counselor or lawyer. The rules require live hearings to be conducted by a neutral decision-maker with presumption of innocence.
Both parties would have equal access to all the evidence used by the school investigators to determine the facts of the case and would have the opportunity to appeal the decisions. Primary and secondary schools, which are also linked by Title IX, would not be required to hold live hearings.
Although the rules were drafted over the past year, they have been reviewed in recent weeks by the White House and other agencies of the administration where emotions were still alive following the confirmation hearings before the Supreme Court of Justice Brett M. Kavanaugh.
President Trump used the arguments of due process to rally the Conservatives when his Supreme Court candidate was charged with sexual assault, including an episode that allegedly took place at Yale. Judge Kavanaugh was finally confirmed even after an accuser, Christine Blasey Ford, publicly exposed her allegations before the Senate Judiciary Committee at a hearing deemed painful by all parties.
"If this proposed rule comes into force, every Title IX proceeding on a campus will duplicate what happened in the Judicial Committee of the Senate against Ms. Christine Blasey Ford," said Jess Davidson, Acting Executive Director of End Rape on Campus.
Victims and fair trial advocates commended the department for including safeguards in the cross-examination requirement. The rules prohibit defendants from directly questioning victims, in accordance with the recommendation of the Obama administration; require cross-examination through a third party, such as a counselor or lawyer; and include "protection against rape" protection that would prevent the complainant's sexual history from being revealed.
"There is no better way to verify the veracity of a charge than to question the accuser at a live hearing," said Justin Dillon, Partner. Washington-based law firm KaiserDillon, which represented dozens of accused students. "If the colleges are to rule on what is essentially crimes, then the accused students deserve the tools they need to defend themselves effectively."
But victim advocates said the regulation undermines the intent of the Sex Discrimination Act, which is to fight against gender-based discrimination and to define sexual misconduct as a way to deny students access to education. .
Several groups believed that the rules were intended to reduce the number of investigations conducted under Title IX on campuses and to deter sexual assault and harassment denunciations. In In a summary of its proposal, the ministry said the rules were "to produce more reliable results, thus encouraging more students to go to their schools for help after the school year." sexual harassment and to reduce the risk of unduly punishing pupils ".
Legal experts say the ministry appears to be aligning with the courts, where a wave of opinions over the past two years has weighed heavily on the accused students' side.
K. C. Johnson, a history professor at Brooklyn College and the City University of New York, said he believed the Department of Education was seeking to institutionalize a recent decision made by a federal court. In that decision, against the University of Michigan, the court ruled that universities must allow students or their representatives to directly question their accusers in a public hearing under Title IX.
But Terry W. Hartle, vice president of the American Council on Education, who represents presidents of colleges, warned that schools wanted the education department to clarify how to balance survivor support well. and the rights of accused students, colleges and universities. were ill equipped to conduct essentially trials.
"Colleges and universities are not courts and this type of procedure would require us to legalize disciplinary procedures for students," said Hartle. "We lack knowledge, expertise and credibility to do it."
Last September, when Ms. DeVos announced that she would be proposing the rules of Title IX, she rescinded the non-binding guidelines of the Obama era, which she said "had failed too much." students "and forced the colleges to put in place" quasi-legal structures ".
The Obama era's guidelines were praised by victims' rights advocates who blamed the colleges for addressing the issue of reports of rampant sexual assault on campus. Colleges have been particularly encouraged to adopt a lower standard of proof – the "preponderance of evidence" – in the disposition of cases.
They also applied a broader definition of sexual harassment and maintained a longstanding standard that a school "should reasonably know" of an episode to determine the responsibility of a school that did not investigate a complaint. The rules also required schools to investigate any harassment complaint, regardless of where it occurred.
The new rules would require institutions to be held legally responsible only for investigating formal complaints and responding to reports that school officials have "real knowledge" of what is happening. A formal complaint is a complaint to "an official with the power to institute corrective action". If a victim chooses not to file a formal complaint, the rules encourage schools to provide "support measures" without penalty.
The new rules would adopt a new definition of sexual harassment defined by the Supreme Court of Justice as "such a serious, intrusive and objectively offensive sexual harassment behavior that it prevents a person from having access to the program or the program". School activity of the school.
The rules also stipulate that complaints must relate to acts that occurred as part of the program or school activity, although the ministry stated that schools should consider factors such as whether the harassment occurred in a place or circumstances where the school "owned the premises or had operated". The rules would also allow schools to choose the standard of proof – "preponderance of evidence" or "clear and convincing evidence" – to be applied in determining whether the accused students are responsible for the alleged misconduct.
To determine whether the schools were taking appropriate measures to deal with the allegations, the ministry would apply a standard called "deliberately indifferent," which means that an institution would violate the law "only if its response to sexual harassment was patently unreasonable." known. "
Source link
