Law professor worried that proposed regulations will allow sexual misconduct at KU to go unpunished

photo by: AP Photo/Matt Rourke

In this Sept. 17, 2018 photo, Education Secretary Betsy DeVos speaks during a student town hall at National Constitution Center in Philadelphia. DeVos is proposing a major overhaul to the way colleges handle complaints of sexual misconduct. (AP Photo/Matt Rourke)

Recently proposed changes to Title IX rules regarding how colleges will handle allegations of sexual assault and harassment are drawing sharp criticism from a University of Kansas law professor who says the changes will make victims less likely to come forward and offenders more likely to go unpunished.

Professor Corey Rayburn Yung, whose legal research has focused on sexual assault and rape, is concerned that the changes announced by the U.S. Department of Education will give unnecessary protections to the accused, and he’s also worried that the changes will make Title IX inconsistent with the processes used in other civil rights cases.

One of the significant proposed changes to Title IX is that a standard of clear and convincing evidence would be used instead of the current standard of preponderance of the evidence. A preponderance standard means that it is more likely than not that the accused committed the misconduct. A clear and convincing standard, on the other hand, means that it is substantially more likely than not that the accused committed the misconduct; it is a lower standard than guilt beyond a reasonable doubt, but a higher one than the preponderance of the evidence.

Yung is concerned that the proposed change will make Title IX operate differently from other civil rights laws that rely on the preponderance of evidence standard.

“Preponderance of evidence is the standard for civil litigation, including civil rights law. Clear and convincing evidence is a rarely used standard … It’s strange to treat sexual assault and harassment differently than similar claims, such as racial harassment in the workplace,” Yung said.

The proposed changes, Yung said, will probably make victims less likely to speak up.

“There will need to be really hard evidence to report an assault; even now they go underreported,” Yung said. “There will not be much incentive for victims to come forward, and it creates an environment where victimizers can continue with impunity.”

Here are several key provisions to the new Title IX regulations, according to the Department of Education:

• The proposed rule would require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to “rape shield” protections (which limit the ability to introduce evidence or cross-examine rape victims about their past sexual behavior).

• Universities would be required to hold a live hearing where cross-examination would be conducted through the parties’ advisers. A personal confrontation between the complainant and the respondent would not be permitted.

• To promote impartial decisions, schools would not be allowed to use a “single investigator” or “investigator-only” model.

• Under the proposed rule, if a school chooses to offer an appeal, both parties can appeal.

• The proposed rule defines sexual harassment as 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.

“Far too many students have been forced to go to court to ensure their rights are protected because the Department has not set out legally binding rules that hold schools accountable for responding to allegations of sexual harassment in a supportive, fair manner,” Secretary of Education Betsy DeVos said in a release from the U.S. Department of Education.

DeVos said she wanted to ensure that Title IX protects all students — victims as well as the accused.

According to a Sept. 10 story in The New York Times, the Department of Education projected that the approximately 6,000 colleges and universities nationwide currently conduct an average of 1.18 sexual harassment investigations each per year and that under the new rule, the figure would fall to 0.72 investigations per year, a decline of 39 percent.

According to KU’s 2017 Clery Act Report, 14 rapes were reported at KU in 2017. Two of the reported rapes were at noncampus locations. Of the 12 on-campus incidents, nine reportedly occurred in campus housing.

KU is reviewing the proposed new Title IX regulations, said Erinn Barcomb-Peterson, a KU spokeswoman.

“KU’s policy remains unchanged,” Barcomb-Peterson said. “We will continue ongoing efforts to be a leader in how universities prevent and respond to sexual assault and violence.”

The proposed regulations are now in a 60-day public comment period, which should run through the first part of 2019. Yung has signed a letter written by a group of law professors who are worried about the narrowing of the rules.

Barcomb-Peterson said KU would likely weigh in through public comment, though she wasn’t certain if it would be independently or with KU’s peer institutions.

Although the public can weigh in, Yung considers the input process as essentially a formality.

“They will enact the regulations,” he said of DeVos’ department. “This can be done entirely by the executive branch.”

Though Congress could make changes, he said he doubted it would.

Comments may be submitted through the Federal eRulemaking Portal at or via mail to the U.S. Department of Education, 400 Maryland Ave. SW, Washington, D.C., 20202. Comments by fax or email won’t be accepted.


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