Due process or helping rapists? Department of Education slammed for sex assault definition change
US Education Secretary Betsy DeVos has proposed new rules on how schools respond to sexual harassment, prompting outcry from activists claiming that this would gut Title IX protections for victims.
The new rules define sexual harassment under Title IX, the federal civil rights law that prohibits sex-based discrimination in federally funded education programs, and set out due process protections, the Department of Education announced on Friday.
“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” DeVos said in the announcement. “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function.”
The proposed changes will be open to public comments for 60 days after publication in the Federal Register, but the backlash has already started on social media, where it was denounced by former Obama adviser Valerie Jarett, the Human Rights Campaign, and even the American Civil Liberties Union (ACLU).
Title IX ensures all students the legal right to equal education access, free from violence or trauma. 1 in 5 women, 1 in 16 men, experience sexual assault in college. The new DOE rules will reduce the number of survivors who come forward #handsoffix. https://t.co/r7tRXA3C8X— Valerie Jarrett (@ValerieJarrett) November 16, 2018
HORRIFYING: Betsy DeVos’s proposal will make it easier for perpetrators to get away with sexual violence.https://t.co/QUZQAJFNuQ— Human Rights Campaign (@HRC) November 16, 2018
It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence.— ACLU (@ACLU) November 16, 2018
The ACLU in particular argued the new rules promote “an unfair process, inappropriately favoring the accused.” This unusual turn of phrase has raised some eyebrows, as journalists normally in favor of the ACLU wondered if the organization has strayed from its principles.
The ACLU is rapidly becoming a standard liberal advocacy group, subordinatig its long-standing civil liberties principles to these more pedestrian partisan goals. Still some noble, admirable holdouts there, but the trend is as clear as it is tragic.— Glenn Greenwald (@ggreenwald) November 16, 2018
On the other hand, the Foundation for Individual Rights in Education (FIRE) applauded the proposed changes, saying that the definition of sexual harassment in line with established case law would eliminate the “confusion that has led institutions nationwide to adopt overly broad definitions of sexual harassment that threaten student and faculty speech.”
The proposed regulations define sexual harassment in accordance with established Supreme Court precedent, eliminating the confusion that has led institutions nationwide to adopt overly broad definitions of sexual harassment that threaten student and faculty speech. 3/7— FIRE (@TheFIREorg) November 16, 2018
FIRE also commended the DOE for following the official rulemaking procedures, instead of imposing the new rules through “Dear Colleague” letters - a reference to what happened in 2011, when the Obama administration did just that with the rules currently in effect.
The letter, issued by the DOE’s Office for Civil Rights in April 2011, interpreted the 40-year-old civil rights law as an authority to mandate procedures for addressing sexual assault. More than 7,000 higher education institutions that receive federal funding were told they had to use the lowest standard of evidence in sexual assault cases, allow appeals of not-guilty findings, and adjudicate all cases within a 60-day time limit. The letter also strongly discouraged cross-examination of accusers.
Sexual assault has come under increased spotlight over the past few years, with media referring to an “epidemic” of rape on US college campuses. Nonprofits working with the government to curb sexual violence have reported that one in five women and one in 16 men were getting sexually assaulted in college, and that more than 90 percent of assaults went unreported.
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