Betsy DeVos released a proposal to overhaul Title IX that would bolster the rights for those accused of sexual misconduct

  • Education Secretary Betsy DeVos released new guidelines for campus rules governing cases of sexual assault and harassment, which emphasised increased rights throughout the process for both the victims and the accused.
  • The proposal narrows the definition of sexual harassment and promises presumption of innocence, cross-examination, and right to appeal to those accused.
  • DeVos first announced her intention to revise the rule last year, saying it was skewed against the accused.

Education Secretary Betsy DeVos released new guidelines for schools handling cases of sexual assault and harassment that emphasised increased rights for both the victims and the accused, even in the absence of a formal complaint.

The new proposal is a re-write of policies formed under former President Barack Obama, which DeVos previously said were skewed against those accused of sexual assault.

The proposal casts a more narrow definition of sexual harassment that only recognises misconduct if it prevents a student from participating in a school activity or program. The school may only investigate when a complaint is filed in accordance with campus rules.

Under the Obama-era rule, sexual harassment was defined as “unwelcome conduct of a sexual nature.” The new proposal tightens the description to “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.”

It also places the burden of proof on the school to ensure “fair and reliable outcomes” in each case and promises presumption of innocence, cross-examination, and right to appeal to those accused.

“The proposed regulation is grounded in core American principles of due process and the rule of law,” a department summary of the proposal said. “It seeks to produce more reliable outcomes, thereby encouraging more students to turn to their schools for support in the wake of sexual harassment and reducing the risk of improperly punishing students.”

Under the new rule, schools would need “actual knowledge” of the allegations to pursue the case and would offer supportive measures that “preserve or restore a student’s access to the school’s education program or activity,” to the accused, establishing that measures such as a no-contact order imposed by a victim cannot “burden” or punish an accused student during an investigation.

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The proposal equally weighs considerations of impacts on accusers and the accused. “Survivors often struggle or fail to continue their educations due to emotional and physical suffering in the wake of sexual harassment,” the proposal reads. “Persons accused face the prospect of ruined reputations and derailed educational opportunities when punishments are imposed based on allegations without an impartial fact-finding process.”

The rule is related to Title IX, which prohibits discrimination based on sex at colleges and universities that receive federal funding, and has come to include schools’ responsibility in handling on-campus sexual violence.

DeVos has said the previous rules pushed schools “to overreach,” and announced last year she was prioritising an overhaul to increase balance in cases of sexual assault.

Critics of the current guidance say the rules diminish the rights of the accused by directing colleges to use a lower standard of proof in ruling a student guilty of sexual assault.

“Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined,” she said in September 2017. “These are non-negotiable principles.”

There was a resurgence of discussion in the handling of sexual assault accusations when three women accused then-Supreme Court nominee Brett Kavanaugh of sexual misconduct in decades-old incidents. After Kavanaugh denied the allegations and one of the accusers testified before the Senate, lawmakers and observers were split on how to proceed.

The proposal is open to public comment for 60 days after its publication before it potentially becomes a rule of law.

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