The rules would dictate how schools meet their obligations under Title IX, the 1972 law prohibiting gender-based discrimination in educational programs that receive federal funding. DeVos had earlier rescinded an Obama-era Title IX guidance, arguing it was unfair to the accused.
The new regulations would narrow the definition of sexual harassment, require live hearings in which the accuser can be cross-examined, allow colleges to only investigate formal complaints and to use a higher standard of proof, and give schools more wiggle room to resolve disputes informally.
DeVos’s rules have been hailed by conservatives for bringing balance to a process they criticized as inconsistent and rigged against the accused. Meanwhile, victims’ advocates and civil rights groups slammed the new rules for swinging the pendulum too far in the other direction.
“Thank God for Betsy DeVos,” Justin Dillon, a partner at KaiserDillon PLLC, a Washington law firm that has often represented accused students, wrote in the Chronicle of Higher Education. “The education secretary has taken an important step toward restoring common sense and sanity in how these cases are handled.”
Former vice president Joe Biden, who lead the Obama administration’s efforts to reform the way colleges responded to rape and harassment, condemned the proposal as a dangerous step backwards.
“Today’s proposed rollback would return us to the days when schools swept rape and assault under the rug and survivors were shamed into silence. Schools will have decreased liability for their response to sexual violence,” he wrote on Facebook. “Most disturbing, students will be placed at greater risk. We cannot go back.”
DeVos released the proposed regulations Nov. 16. The public has 60 days to submit feedback.
At the Vermont State Colleges, general counsel Sophie Zdatny said the rules would codify many practices already in place across the system’s four schools. That includes the right for each party to have an adviser, to present evidence, to identify witnesses and to identify questions they want the investigator to ask the other party. Both sides can also see and respond to the investigator’s draft report and review any evidence considered.
“We do feel that we currently provide appropriate due process to both parties, including the respondent,” she said.
The VSC also doesn’t use the so-called “single investigator model” that is common to many colleges, where the same person is Title IX coordinator, investigator, and decision-maker on cases. The new rules would do away with that system.
But Zdatny said one big difference between the VSC’s procedures and a proposed requirement would be a live hearing, where a representative for the accused gets the chance to cross-examine the complainant. That could have a “chilling impact” on reporting, Zdatny said.
“Is someone really going to be prepared to file a complaint knowing that not only is there going to be what amounts to a lengthy investigation, but now there’s an even more elaborate process at the end with a live hearing?” she asked.
Zdatny also said that, in her experience, those accused of misconduct are much more likely to hire an attorney.
“The respondent may have a trial attorney representing them and the complainant may be represented – maybe it’s a best friend, or a parent, or a coach, or a faculty member or a staff member. But not somebody that’s equipped to cross-examine somebody in a trial-like setting,” she said.
The school doesn’t currently use live hearings or live cross-examinations, Burger said, which would create a more trial-like atmosphere. But he said Middlebury did welcome the possibility of using alternative routes for resolving complaints, including restorative practices.
The school is still reviewing the rules, Burger said, and intends to submit feedback within the 60-day period, either alone or jointly with other institutions. He added he hoped the final rules would ensure practices that are “fair, non-traumatizing, rigorous, and do not place an unreasonable burden on any party or on institutions themselves.”
