Betsy DeVos Wants to Roll Back Civil Rights Protections For Students Filing Complaints of Sexual Harassment or Assault

The Department of Education headed by Secretary Betsy DeVos on Friday released a proposed rule that, if implemented, would dramatically limit schools’ obligations to students who experience sexual violence and would not further the stated goal of fair process. The ACLU is equally committed to ensuring students can learn in environments free from sexual harassment and violence and to guaranteeing fair process for both respondents and complainants.

The new rule preserves some important protections for respondents from the Department of Education’s 2001 guidance, such as a guarantee of an impartial investigator and the opportunity to present rebuttal evidence. It also ensures both parties equal rights to appeal and access to evidence.

But the overwhelming effect of the new rule is to limit schools’ obligations to students who file complaints of sexual harassment and violence under Title IX, a federal civil rights statute that prohibits sex discrimination in education, without increasing the fairness of disciplinary proceedings. Under the new policy, schools will likely investigate far fewer complaints, and the Department of Education will hold fewer schools accountable for ensuring campuses are free of sexual harassment and assault.

Here are some key changes in how school investigations of sexual assaults and harassment would proceed if the proposed rule takes effect.

Schools would be required to investigate only the most extreme complaints of sexual violence.

The new rule would dramatically limit the definition of sexual harassment that gives rise to investigations. Schools would need to investigate only reports of “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to education. Departing from earlier Department guidance, under the proposed rule, schools would not have to investigate complaints about “unwelcome conduct of a sexual nature” that “limit[s]” but does not “deny,” a students’ ability to learn. Yet in Davis v. Monroe County Board of Education, the Supreme Court limited this narrow definition of sexual harassment to “private suit[s] for money damages” brought by students against schools for ignoring complaints of sexual violence. All allegations of sexual harassment should be investigated.

Schools could adopt a standard of proof that favors the respondent.

Standards of proof are integral to fair proceedings. The customary standard of proof for civil proceedings, where both sides have something to lose and there is no reason to favor one side over the other, requires proof by a preponderance of the evidence, which is more than 50 percent. The preponderance of the evidence standard applies in all other sexual harassment proceedings and should apply here as well. Previous Department of Education guidance adopted that standard of proof. But the new regulation would allow schools to use a “clear and convincing evidence” standard, which favors the respondent by finding against complainants even where it is more likely than not that their account is accurate. There is no reason to weight the scales against complainants in civil disciplinary proceedings, and doing so will predictably result in findings for respondents even where it is more likely than not that the assault took place.

Universities would only be obligated to respond to complaints of sexual violence made to designated high-level officials.

Under the new rule, colleges and universities would only be obligated to take action if students make formal complaints to designated high-level school officials. If students reported their assaults to resident advisors, teaching assistants, coaches, or other school employees whom they know and trust, schools would not be obligated to intervene. Under prior Department of Education rules, schools were required to take action when students reported sexual violence to a much broader range of school employees — anyone whom a student would reasonably believe had the authority or responsibility to redress harassment.

School disciplinary proceedings would not become fairer under the proposed rule.

The ACLU has a long history of fighting for the rights of students facing unfair school discipline that pushes kids out of school and into the criminal justice system, with disproportionate effects on students of color, LGBTQ students, and students with disabilities. All students are entitled to fair disciplinary processes, but fair process should not be used as a fig leaf to roll back students’ right to learn in an environment that takes sexual harassment and assault seriously.

By raising the standard of proof and limiting the definition of sexual harassment and assault, the proposed rule will harm already-vulnerable students. Sexual assault and harassment can happen to anyone, though it disproportionately harms female students, students of color, students with disabilities, and LGBTQ students. In one study, nearly a quarter of undergraduate women reported experiencing nonconsensual sexual contact. These risks are even greater for women and girls of color, and they are less likely to report. Transgender students, LGB students, and students with disabilities also face disparate rates of harassment and assault.

The proposed rule comes after a long line of actions taken by the Trump administration to attempt to roll back civil rights for some of the most vulnerable students. The Department previously rescinded guidance outlining schools’ responsibilities to transgender students, and it began refusing to investigate transgender students’ claims. We can also expect to see continued attacks on transgender, nonbinary, and intersex people in future agency rules. This proposed rule is yet another attempt to constrict federal sex discrimination protections and limit the definition of sex-based harassment.

If you’re concerned about the Trump administration rolling back protections for students submitting complaints of sexual violence, it’s time to speak out. Before the rule can go into effect, the administration must review public comments on their proposal. Survivors, students, parents, educators, and other stakeholders should write comments demanding that the administration not turn its back on students who experience sexual harassment and assault while at the same time holding fast to fair procedures for both parties.

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Greggore

Due process is a fundamental human right in Western Society.

At what point has the ACLU forgotten that?

Douglas Beers

I'm saddened to see the ACLU compromise its integrity by failing to stand up for due process and fair hearings. Universities have become radical feminist bases of operation and the ACLU has failed to stand up to them for political expediency. The very notion that females face discrimination in higher education in any respect is preposterous. It is males who face barriers to access and these rules are only a first step in 1 area. The area that the ACLU used to care about.
I already know the prejudice in some minds about this post. Just to be clear, I'm a longtime member of this organization that has done an invaluable service for many years. Sometimes against popular opinion. This needs to be one of those cases.

Greggore

Due process is a fundamental human right in Western Society.

At what point has the ACLU forgotten that?

Anonymous

"The customary standard of proof for civil proceedings, where both sides have something to lose and there is no reason to favor one side over the other, requires proof by a preponderance of the evidence, which is more than 50 percent."

Okay.... but that isn't this. How do both sides have something to lose here?
If the investigation sides with the complainant, the accused's life is essentially destroyed, they could be expelled, and lose all the money they spent on their education.
If the investigation sides with the accused, nothing happens.
The investigation is done at the schools expense.

These systems are perfectly analogous to the criminal justice system, just with a more limited scope and a more limited mandate for penalties.
Imagine someone saying that standards of evidence need not apply in cases where the penalty was just a fine, because "you aren't going to prison".

Michael McCarthy

Bye ACLU. When my membership expires, I'm done with you. I thought your organization was an advocacy group for civil liberties. Instead it turns out, you are a wholly owned subsidiary of the Democratic party.

You stance on this issue is the final straw. Why aren't you defending due process? This is basic stuff. Shameful stance.

Anonymous

F

Another Concern...

First, let's get this out of the way. I am an ACLU member, and have been for several years now. Even before I started donating, I admired the ACLU for defending the rights of those on the fringes of society, and I've always considered myself a civil libertarian.

In the past, the ACLU has defended the rights of Jehova's Witnesses, victims of the WWII Japanese Internment Camps, racial minorities of all kinds, and member of the KKK. They have defended people an organizations whose goals were laudable, and those whose goals were abhorrent. It doesn't and shouldn't matter. As H.L. Mencken said, "The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all."

This time the ACLU has gotten it wrong, and dangerously so. Justice and the laws should always favor the accused, whether it is politically expedient to do so or not. The last thing I ever expected to read from the ACLU is that something "inappropriately favors the accused". I'm not sure I personally believe that is even possible.

I'm not sure if this position is simply due to being caught up in the MeToo movement, or if the ACLU is simply rejecting the idea because it's promoted by a Trump appointee who is woefully unqualified for her position, but it doesn't matter. If the former, the ACLU should be reminded that being on the right side and being on the popular side aren't the same thing; if the latter, the ACLU should be reminded that you shouldn't dismiss doing the right thing simply because someone you don't like proposed it.

Anonymous

Unfortunate that this is the position the ACLU chose to take. The reason I formerly supported the ACLU was its full-throated defense of due process against the passions of the day. Crimes may be heinous, and there may be loud voices for vengeance on behalf of favored constituencies, but the ACLU stood firm in defense of the rule of law.

It is truly difficult to comprehend that an organization with such a storied a history would come out AGAINST giving due process to defendants, let alone reduce the issue to the patently absurd claim that "this proposed rule is yet another attempt to constrict federal sex discrimination protections and limit the definition of sex-based harassment."

Leslie Hagarty

This is an unacceptable rule change. Please support sexual assault survivors, by allowing them the protections currently in place. No change!

Ron Stout

I can’t remember having such an unqualified person as Exucation Secretary . DeVoss is a lesson in education . She clearly demonstrates a disconnect between private business and Public education showing us the results a private education has on a person . Unqualified , dim , & self centered without knowledge .

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