Changes bring balance
Unlike the previous rules, more suggestions than requirements, the new rules have the force of law.
The Editorial Board
Wed, 20 May 2020 04:00:00 GMT
link -- with images
Changes to Title IX rules by Secretary of Education Betsy DeVos bring a measure of balance and fairness to the way educational institutions investigate and decide sexual misconduct allegations.
The new regulations protect the rights of those accused and continue to assure that victims can come forward and proceed against harassers and assailants. They also standardize some practices across the board for colleges and universities. For instance, all paperwork and documents related to the claim must be available to both sides.
Acts that are specifically included under the term sexual harassment now include sexual assault, dating violence, domestic violence, and stalking. Reforms aiding victims include requirements that schools offer class or dorm reassignments and no-contact orders for victims.
Unlike the previous rules, more suggestions than requirements, the new rules have the force of law.
Schools are specifically held accountable for failure to promptly respond to sexual misconduct incidents.
Importantly, the accused has the right to written notice of the allegations and to cross-examine his or her accuser and witnesses. Direct questioning of an accuser by the accused isn’t permitted, but a representative or attorney can ask the questions.
The potential impact of a sexual harassment claim on an individual’s future — from possible school expulsion or other academic sanctions to a permanent record at a college or university — demand a hearing with the ability to cross-examine accusers.
While Title IX proceedings are not criminal cases, their results can destroy the reputation of a student or faculty member and wreak havoc with their future employment.
The troubles with Title IX enforcement worsened when in 2011 the administration of President Barack Obama urged schools to use a “preponderance of the evidence” standard in adjudicating claims. That is the lowest standard of proof used in trial court proceedings.
The new rules remedy this in part by allowing schools to choose either to proceed under a preponderance of the evidence standard or a “clear and convincing evidence” standard.
Once chosen, the schools must stick to it and enforce the standard of proof fairly. This is a shortcoming of the changes. One standard of proof across the board would have clarified the requirements to prove a case. Given the repercussions, the clear and convincing standard should be mandatory. Colleges and universities should employ that standard under the new rules.
Hearings on harassment claims sometimes devolved into a Star Chamberlike proceeding — the accused being presumed guilty and given little opportunity for a defense. Such hearings led to a slew of federal lawsuits resulting in judgments against colleges and universities for violating the civil rights of the accused.
In an age where, more than ever, society is aware of the problem of sexual assault, the rule changes are unlikely to have the chilling effect some victim’s rights advocates fear.
Harassment and sexual assault cannot be tolerated. Instilling some limited rights to the accused in a noncourt proceeding is simple fairness.
Clearly, Title IX proceedings were out of balance. The range of practices at various colleges and universities was a hodgepodge because of the vagueness of directives on hearings. In-person hearings now are required if claims are not settled.
Title IX actions worked well to equalize men and women’s college sports. The law isn’t suited well to vetting claims of sexual harassment and assault.
Despite that, the new rules promulgated by the federal Department of Education under Ms. DeVos improve the equity of proceedings for the accused while retaining victims’ abilities to take action against those who harass and abuse them.