New rules for handling sexual misconduct complaints throw another wrinkle in colleges’ reopening plans

photo by: Mike Yoder/Journal-World File Photo

In this file photo from Sept. 16, 2014, demonstrators sit outside Strong Hall to protest the University of Kansas' handling of sexual assault investigations.

Whenever colleges across the country are able to safely reopen amid the COVID-19 pandemic, they will face mandatory implementation of complex new federal rules on handling one of the most emotionally charged issues on college campuses: sexual harassment and assault complaints.

U.S. Department of Education Secretary Betsy DeVos on Wednesday unveiled the final version of wide-ranging new requirements for how colleges and universities that receive federal money must adjudicate claims of sexual misconduct under Title IX, a nearly 50-year-old law prohibiting sex discrimination.

Critics argue that the new rules, which take effect Aug. 14, are too friendly to those accused of sexual violence while they leave survivors open to retraumatization. The department, which dictated that the Title IX regulations will be enforceable by law for the first time, said the rules prioritize due process.

“Today we release a final rule that recognizes we can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process,” DeVos said Wednesday.

The new regulations will force universities — including the University of Kansas, where the handling of sexual misconduct has long been a hot-button issue — to make drastic changes to how they investigate and issue punishments in reported Title IX cases.

For example, the new regulations limit the definition of sexual harassment to conduct that is “unwelcome … severe, pervasive and objectively offensive.” Currently, conduct has to meet only one of those parameters before it qualified as sexual harassment under guidance from President Barack Obama’s administration.

Under DeVos’ regulations, colleges will be required to hold live hearings during which accusers and the accused in Title IX cases can have an adviser or lawyer question the other party via cross-examination. Sexual history is generally not a permitted topic during the questioning period, according to the regulations, but critics argue that live hearings will retraumatize survivors and dissuade people from coming forward with complaints.

Colleges under the new regulations are only required to investigate claims filed through a formal process to officials with the ability to take action. This rule would seem to challenge the concept of mandatory reporters, or campus employees legally required to file a report if they’re made aware of sexual misconduct — such as a graduate teaching assistant or residential adviser, for example.

Under the Obama-era guidelines for handling Title IX complaints, schools were required to use a preponderance of evidence standard for deciding whether a party committed the act — meaning it was more likely than not that the conduct occurred. The DeVos guidelines allow colleges to choose whether they use a preponderance of evidence standard or a clear and convincing evidence standard. The clear and convincing standard means that it’s substantially more probable that the conduct occurred than not. Both standards are far less stringent than the legal standard of guilt beyond a reasonable doubt that is required in criminal cases.

When reached on Wednesday, a KU spokeswoman said the university needed time to determine how the new regulations would change the makeup of the university’s handling of Title IX complaints.

“The university needs time to evaluate these new guidelines to determine how they will change our process, as well as determine in what ways our process already addresses these guidelines in terms of supporting complainants and providing due process to respondents,” Erinn Barcomb-Peterson told the Journal-World in an email.

Education associations across the country on Wednesday blasted the department for attempting to implement such drastic changes while schools are dealing with an unprecedented pandemic that on its own threatens to upend the structure of higher education.

Barbara Snyder, the president of the Association of American Universities — of which KU is one of 63 members — said that though the AAU had worked with the Department of Education throughout the process of developing new guidelines, August was simply too early to implement them.

“The department’s decision to implement new Title IX regulations during a global public health crisis is a clear indication that they are not interested in seriously consulting America’s colleges and universities to implement the regulations in a manner that best serves students’ interests,” Snyder said.

The American Council on Education — a nonprofit higher education organization with 1,700 members, including KU — said the decision to force such drastic change on universities dealing with the COVID-19 pandemic was “as cruel as it is counterproductive.”

“The Department of Education is not living in the real world,” ACE President Ted Mitchell said. “As a result of the pandemic, virtually every college and university in the country is closed. Choosing this moment to impose the most complex and challenging regulations the agency has ever issued reflects appallingly poor judgment.”

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